Recorded at the Request of
and When Recorded Return to:
City of Fresno
City Clerk's Office
2600 Fresno Street, Room 2133
Fresno, CA 93721-3603
(SPACE ABOVE THIS LINE FOR RECORDER',S USE ONty,)
This PLHA Agreement is recorded at the request and for the benefit of the City of Fresno and is exempt from the payment of a recording fee pursuant to Government Code Section 6103.
CITY OF FRESNO
By
Georgeanne A. White
City Manager
Date:
CITY OF FRESNO
PERMANENT LOCAL HOUSING ALLOCATION PROGRAM
AGREEMENT
by and between
CITY OF FRESNO,
a municipal corporation
and
Housing Authority of the City of Fresno,
a California public body corporate and politic
regarding
Heritage Estates
East Florence Avenue and South Plumas Street, Fresno, CA 93706 APN: 477-060-047
3387578v1 / 18621.0001
TABLE OF CONTENTS
Paqe
RECITALS
ARTICLE 1.
ARTICLE 2.
ARTICLE 3.
ARTICLE 4.
ARTICLE 5.
ARTICLE 6.
ARTICLE 7.
ARTICLE 8.
ARTICLE 9.
ARTICLE 1O
ARTICLE 11
DEFINITIONS
TERMS OF THE LOAN...
REPRESENTATION AND WARRANTIES OF DEVELOPER.
WARRANTIES AND COVENANTS BY DEVELOPER.
PROPERry MAINTENANCE
DISBURSEMENT OF PLHA FUNDS
CONSTRUCTION OF THE PROJECT
OPERATIONS OF THE PROJECT.......
INSURANCE AND INDEMNITY AND BONDS
DEFAULT AND REMEDIES
GENERAL PROVISIONS
1 2
5 6
7 11
14 16
21 22
27 28
3387578v1 / 18621.0001
PERMANENT LOCAL HOUSING ALLOCATION PROGRAM AGREEMENT
This Permanent Local Housing Allocation Program Agreement (Agreement) is entered into on 2024, by and between the City of Fresno, a municipal corporation, (CITY), and Housing Authority of the City of Fresno, a California public body corporate and politic (DEVELOPER).
RECITALS
A. WHEREAS, the CITY has received a Permanent Local Housing Allocation (PLHA) Program award from the California Department of Housing and Community Development (HCD), under Chapter 364, Statutes of 2017 (SB 2, Atkins, as authorized by Health and Safety Code (HSC) Section 50470, established the Buildings and Homes and Jobs Trust Fund (Fund) and the Permanent Local Housing Allocation (PLHA) Program (PLHA Program) which was designed to provide a permanent source of funding to all local governments in California to help cities and counties implement plans to increase the affordable housing stock.
B. WHEREAS, to advance the supply of affordable housing within the City of Fresno, the CITY desires, among other things, to encourage investment in the affordable single-family housing market.
C. WHEREAS, the DEVELOPER desires to act as the owner/developer exercising effective project control, as to the construction of 33 (3 Bdl2 Bath or 4 Bdl2 Bath, with a 2 Bdl2 Bath option) single-family units of which 25 units will be PlHA-assisted units preserved as Very Low- and Low-lncome housing, as defined by the PLHA Program, and related on-site and off-site improvements as more particularly described in EXHIBIT "B'- Project Description and Schedule, incorporated herein (Project). The Project Description and Schedule provides that the Project will be constructed in phases (each, a "Phase of the Project"), allowing for construction of a new Phase of the Project after occupancy certificates have been issued for the previously constructed Phase of the Project.
D. WHEREAS, the Project will be constructed upon PLHA Program-eligible Property identified as Assessor's Parcel Number 477-060-04T (Property) owned by the DEVELOPER.
E. WHEREAS, to further its goal to increase the supply of affordable single-family housing within the City of Fresno, the CITY desires to assist the DEVELOPER by providing a Three Million Sixty-Two Thousand Six Hundred Eighty-Nine Dollars and 00/100 ($3,062,689.00) residual receipts PLHA Program Loan to the Project (Loan), at3o/o interest during construction and converting to 0% interest at conveyance of the houses through escrow to an eligible homebuyer, upon the terms and conditions in this Agreement, as further identified in EXHIBIT "C' - Budget, to be secured by the underlying Property and the affordable housing covenants attached as EXHIBIT (D" Exemplar Declaration of Restriction, and Note, Exemplar Note attached as EXHIBIT'E" - Promissory Note loan, upon the terms and conditions in this Agreement.
F. WHEREAS, the CITY has determined that the Project will not result in any adverse effects which fall within the Mandatory Findings of Significance contained in $ 15065 of the State CEQA Guidelines. Therefore, a determination is made that there is no substantial evidence that the project will have a significant effect on the environment. (Pub. Res. Code S 21064.5; Guidelines S 15070(b) (2).). Additionally, the DEVELOPER completed an environmental review of the Project pursuant to the National Environmental Policy Act 1 (NEPA) guidelines and received Authorization to Use Grant Funds on February 13, 2023.
G. WHEREAS, the Clry has determined that this Agreement is in the best interest of, and will materially contribute to, the Housing Element of the 2035 General Plan. Further, the CITY has found that the Project: (i) will have a positive influence in the neighborhood and surrounding environs, (ii) is in the vital and best interest of the CITY, and the health, safety, and welfare of CITY residents, (iii) complies with applicable State of California and local laws and requirements, (iv) will increase, improve, and preserve the community's supply of Very Low- to Low-lncome Housing available at an affordable cost, as defined hereunder, (v) planning and administrative expenses incurred in pursuit hereof are necessary for the production, improvement, or preseruation of Very Low- to Low-lncome Housing, and (vi) will comply with any and all owner participation rules and criteria applicable thereto.
H. WHEREAS, the CITY and DEVELOPER have determined that the Project's PLHA Units constitute routine programmatic/grantee lender activities utilizing available and allocated program/grantee funding, outside the reach of the California Constitution Article XXXIV and enabling legislation.
l. WHEREAS, the CITY and DEVELOPER acknowledge and agree that the obligations and liabilities of the DEVELOPER hereunder shall be joint and several unless and except to any extent expressly provided otherwise.
J. WHEREAS, on June 28, 2021, the DEVELOPER's Board reviewed and approved the development of the Project.
NOW, THEREFORE, in consideration of the above recitals, which recitals are contractual in nature, the mutual promises herein contained, and for other good and valuable consideration, the parties agree as follows:
ARTICLE 1. DEFINITIONS
The following terms have the meaning and content set forth in this Article wherever used in this Agreement, attached exhibits or attachments that are incorporated into this Agreement by reference.
1.1 Acquisition means vesting of the Property in fee title to the DEVELOPER.
1.2 Affirmative Marketinq means a good faith effort to attract eligible persons of all racial, ethnic, and gender groups, in the housing market area, to sell the proposed Affordable Housing Units proposed for construction on the eligible Property, as hereinafter defined.
1.3 Affordabilitv Period means the minimum period of 30 years commencing from the DEVELOPER records a Notice of Completion for the project.
1.4 Affordable Housinq Units means all the units in the Project that are reserved for households whose income is between 30% to 80% of the area medium income for Fresno County as established by California Department of Housing and Community Development (HCD). The housing units funded by the PLHA Program's applicable income eligibility level does not exceed 80% of the area median income and complies with the definition of Very Low- to Low-lncome as outlined in the PLHA guidelines and Council Approved Five Year Plan, as amended on April 21 , 2022, by Resolution 2022-080. lf other Project funding sources require lower levels of income, then the lower income levels shall apply.
1.5 AMI means the Area Median lncome for Fresno County, as reported annually by HCD.
2 1.6 Budget means the Budget for the development of the Project, as may be amended upon the approval of the CITY's Housing Finance Division provided any increase in PLHA Funds hereunder requires City Council Approval, attached hereto as EXHIBIT'C'.
1.7 Commencement of Construction means the time the DEVELOPER or the DEVELOPER's construction contractor begins substantial physical work on the Property, including, without limitation, delivery of materials and any work, beyond maintenance of the Property in its status quo condition, which shall take place in accordance with the Project Schedule.
1.8 Completion Date means the date the DEVELOPER has recorded a Notice of Completion for the Project.
1.9 Citv of Fresno PLHA Five Year Plan means that PLHA Five Year Plan approved by the Council on April 20,2020, and amended on April 21 ,2022.
1.10 Debt Service means payments made in a calendar year pursuant to the financing obtained for the acquisition, construction, operation and/or ownership of the Project, but excluding residual receipt payments made pursuant to the Note.
1.11 Declaration of Restrictions means the Exemplar Declaration of Restrictions attached hereto as EXHlBlT "D", which contains the affordability covenants and income-level restrictions of this Agreement which shall run with the land and which the DEVELOPER shall record or cause to be recorded against the Property no later than the date of Commencement of Construction.
1.12 Deed of Trust means that standard form Deed of Trust (including the security agreement) given by the DEVELOPER as Trustor, to the CITY as beneficiary, through escrow established by the DEVELOPER at its sole cost and expense with Placer Title Companv, and recorded against the Property to ensure the Note, together with the Deed of Trust in a substantially similar form and attached as EXHIBIT "F" and approved as to form by the City Attorney, as well as any amendments to, modification of and restatements of said Deed of Trust, which Deed of Trust may be subordinated to Project Senior Lenders per the Budget attached as EXHIBIT "C'. The terms of any such Deed of Trust are hereby incorporated into this Agreement by this reference.
1 .13 Eliqible Costs means the PLHA eligible soft and construction costs funded by the Loan, consistent with the Project Budget attached as EXHIBIT "C", allowable under the PLHA Final Guidelines dated October 2019 and Council approved PLHA Five Year Plan.
1.14 Event of Default shall have the meaning assigned to such term under Section
10.1 hereunder.
1.15 Extremelv Low-lncome Household means households whose annual income does not exceed HSC Section 50079.5, which is a maximum of 30% of the area median income for Fresno, California as outlined on the State of California website.
1.16 Fundinq Sources means the CITY's PLHA Funds, conventional permanent loan, Developer's contribution, and any other funds that may become available to the Project.
1.17 Hazardous Materials means any hazardous or toxic substances, materials, wastes, pollutants or contaminants which are defined, regulated or listed as "hazardous substances," "hazardous wastes," "hazardous materials," "pollutants," "contaminants" or "toxic substances" under federal or State environmental and health safety laws and regulations, including without limitation, petroleum and petroleum byproducts, flammable 3 explosives, urea formaldehyde insulation, radioactive materials, asbestos and lead.
Hazardous Materials do not include substances that are used or consumed in the normal course of developing, operating, or occupying a housing project, to the extent and degree that such substances are stored, used, and disposed of in the manner and in amounts that are consistent with normal practice and legal standards. 1 .18 Household means persons related or unrelated, who are occupying the PLHA Units within the Project.
1.19 Loan means the Project Loan of PLHA Funds, in an amount not to exceed Three Million Sixty-Two Thousand Six Hundred Eighty-Nine Dollars and 00/100 ($3,062,689.00), which includes the aggregate2020,2021, and a portion of 2022, PLHA cap (28.5o/o) for the construction of 25 PLHA Units of single-family housing, as outlined in the PLHA Five Year Plan, and determined by the CITY and made available by the CITY to the Project pursuant to the Agreement, as more specifically described in the Budget and in the Promissory Note attached hereto. The Loan shall be payable in accordance with the terms of the Note, shall be secured by a deed of trust on each parcel constituting the Property, and shall be subject to the Deed of Trust attached hereto.
1.20 Loan Documents collectively mean this Agreement, Promissory Note - EXHIBIT "F", Deed of Trust - EXHIBIT "F", and Declaration of Restrictions - EXHIBIT "D", attached hereto and all related documents/instruments as they may be amended, modified, or restated from time to time along with all exhibits and attachments thereto, relative to the Loan.
1.21 Low-lncome Household means households whose annual income does not exceed HSC Section 50079.5, which is a maximum of 80% of the area median income for Fresno County as outlined on the HCD website.
1.22 Note means that certain Three Million Sixty-Two Thousand Six Hundred Eighty-Nine Dollars and 00/100 ($9,002,689.00), PLHA Loan Note in favor of the CITY as Promisor, evidencing the Loan and performance of the affordability and other covenants and restrictions set forth in this Agreement, secured by the Deed of Trust as no less than 3rd position lien upon the Property, naming the CITY as beneficiary and provided to the CITY no later than the date of the Project funding hereunder, an exemplar of which is attached hereto as EXHIBIT "E", and incorporated herein, as well as any amendments to modifications of and restatements of said Note consented to by the CITY.
1.23 Notice of Completion shall mean that Notice of Completion under California Civil Code Section 3093. The Notice of Completion shall be recorded at the Fresno County Recorder's Office with a conformed copy to the City of Fresno Housing Finance Division as evidence of construction completion.
1.24 Operatinq Expenses means actual, reasonable and customary costs, fees and expenses directly incurred, paid and attributable to the operation, maintenance and management of the completed Project in a calendar year, including, without limitation; painting, cleaning, repairs, alterations, landscaping, utilities, refuse removal, certifications, permits and licenses, sewer charges, real and personal property taxes, assessments, insurance, security, advertising and promotion, janitorial services, cleaning and building supplies, purchasing, repair, servicing and installation of appliances, equipment, fixtures and furnishings which are not paid from the capital replacement reserve, fees and expenses of property management and common area expenses, fees and expenses of accountants, attorneys, and other professionals, the cost of tenant services, repayment of any completion 4 of operating loans including any and all deferred developer fees and contractor's fees per the Budget, made to the DEVELOPER, its successors or assignees, and other actual operating costs and capital costs which are incurred and paid by the Property, but which are not paid from reserve accounts.
1.25 PLHA or PLHA Proqram means the Permanent Local Housing Allocation program administered by HCD, pursuant to Health and Safety Code sections 50470 ef seg., implementing SB 2 (Ch.364, Stat. 2017), and the Guidelines promulgated thereunder.
1.26 Proiect means the construction of 33 single-family Affordable Housing Units of which 25 units shall be PLHA assisted, as more particularly described in EXHIBIT "B'.
1.27 PLHA Guidelines or Guidelines means the State of California Housing and Community Development 2019 PLHA Final Guidelines, as they may be amended from time to time.
1.28 Proiect Schedule means the schedule for commencement of construction and completion of the Project included in EXHlBlT "B".
1.29 Proiect Unit or PLHA Unit means those units in the Property which shall be preserved as PlHA-assisted Units and are subject to PLHA Program requirements.
1.30 Propertv means the property located at East Florence Avenue and South Plumas Street, Fresno, California 93706 (APN: 477-060-04T), more specifically described in the Property Description attached as EXHIBIT "A".
1.31 Senior Financinq means the financing for the Project set forth on the Budget and Finance Plan which shall be senior to the PLHA Loan.
1.32 Senior Lender means lenders providing Senior Financing for the Project.
1.33 Sinqle-Familv Housinq means the 33 housing units constructed on the property as defined in 24 CFR 291.301 of which 25 will be PlHA-assisted units.
1.3. 1.35 Verv Low-lncome Household means households whose annual income does not exceed HSC Section 50105 which is a maximum of 50% of the area median income for Fresno, California as outlined on the State of California website.
ARTICLE 2. TERMS OF THE LOAN
2.1 Loan of PLHA Funds. The CITY agrees to provide a loan of PLHA Funds to the DEVELOPER, in an amount not to exceed Three Million Sixty-Two Thousand Six Hundred Eighty-Nine Dollars and 00/100 ($9,002,689.00), all under the terms and conditions provided in this Agreement. The PLHA Funds shall be used for payment of PlHA-eligible soft and construction costs.
2.2 Loan Documents. The DEVELOPER shall execute and deliver the Loan Documents including the Promissory Note to the CITY, and notarized Deed of Trust to Placer Title Companv for recordation against the Property, as provided for in this Agreement.
2.3 Term of Aqreement. This Agreement is effective upon the date of execution and shall remain in force with respect to the Project for the duration of the Affordability Period unless earlier terminated as provided herein. After the Affordability Period, this Agreement will expire. lt is understood and agreed upon, however, that if for any reason this Agreement should be terminated in whole or in part as provided hereunder, without default, the CITY agrees to record a Notice of Cancellation regarding this Agreement upon the written request 5 of the DEVELOPER.
2.4 Loan Repavment and Maturitv. The Loan will accrue interest commencing on the date provided for in the Promissory Note and shall be due and payable in accordance with the Promissory Note and in full not later than the Maturity date provided in the Promissory Note.
2.5 Incorporation of Documents. The DEVELOPER's Application for Funding to the City of Fresno dated July 1 5,2021, the CITY Council approved Minutes of [Date], approving this Agreement, the Loan Documents, PLHA Guidelines, City of Fresno PLHA Five Year Plan, and all exhibits, attachments, documents, and instruments referenced herein, as now in effect and as may be amended from time to time, constitute part of this Agreement and are incorporated herein by reference. All such documents have been provided to the parties herewith or have been othenruise provided to/procured by the parties and reviewed by each of them prior to execution hereof.
2.6 Covenants of DEVELOPER. The DEVELOPER for itself and its agents/assigns covenants and agrees to comply with all the terms and conditions of this Agreement and the requirements of the PLHA Guidelines, as amended.
2.7 Subordination. This Agreement, Declaration of Restrictions, and Deed of Trust may be subordinated to certain approved financing (in each case, a "Senior Lended'), to no less than 4th position, but only on condition that all of the following are satisfied: (a) All of the proceeds of the proposed Senior Loan, less any transaction costs, must be used to provide construction financing for the Project consistent with an approved financing plan; (b) the subordination agreement must provide the CITY with adequate rights to cure any defaults by the DEVELOPER including providing the CITY or its successor with copies of any notices of default; (c) upon a determination by the City Manager that the conditions in this Section have been satisfied, the City Manager or designee will be authorized to execute the approved subordination agreement, inter-creditor agreements, standstill agreements, and/or other documents as may be reasonably requested by the Lender to evidence subordination to the Project financing, without the necessity of any further action or approval provided that such agreements contain written provisions that are no more onerous and which are consistent with the customary standard requirements imposed by the financing source(s), on subordinate cash flow obligations under the then existing senior financing policies, and further provided that the City Attorney approves such document(s) as to form.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF DEVELOPER
3.1 Existence and Qualification. The DEVELOPE R, represents and warrants to the CITY as of the date hereof, that the DEVELOPER is a duly organized California Housing Authorityformed pursuantto Health and Safety Code section 34200 ef seq., which is in good standing with the State of California; the DEVELOPER has requisite power, right, and legal authority to execute, deliver, and perform its obligations under the PLHA Agreement and has taken all actions necessary to authorize the execution, delivery, performance, and observance of its obligations under this Agreement. This Agreement, when executed and delivered by the DEVELOPER enforceable against the DEVELOPER in accordance with its respective terms, except as such enforceability may be limited by: (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other similar laws of general applicability affecting the enforcement of creditors' rights generally, and (b) the application of general principles of equity without the joinder of any other party. to Financial Condition
6 3.2 No Litioation Material The DEVELOPER represents
and warrants to the CITY as of the date hereof that, except as disclosed to and approved by the CITY in writing, no litigation or administrative proceeding before any court or governmental body or agency is now pending, nor, to the best of the DEVELOPER's knowledge, is any such litigation or proceeding now threatened, or anticipated against the DEVELOPER that, if adversely determined, would have a material adverse effect on the financialcondition, business, orassets of the DEVELOPER oron the operation of the Project.
3.3 No Conflict of lnterest. The DEVELOPER represents and warrants to the CITY as of the date hereof that no officer, agent, or employee of the CITY directly or indirectly owns or controls any interest in the DEVELOPER, and no person, directly or indirectly owning or controlling any interest in the DEVELOPER, is an official, officer, agent, or employee of the CITY.
3.4 No Lesal Bar. The DEVELOPER represents and warrants to the CITY, as of the date hereof that the execution, delivery, performance, or observance by the DEVELOPER of this Agreement will not, to the best of the DEVELOPER's knowledge, materially violate or contravene any provisions of: (a) any existing law or regulation, or any order of decree of any court, governmental authority, bureau, or agency; (b) governing documents and instruments of the DEVELOPER; or (c) any mortgage, indenture, security agreement, contract, undertaking, or other agreement or instrument to which the DEVELOPER is a party or that is binding on any of its properties or assets, the result of which would materially or substantially impair the DEVELOPER's ability to perform and discharge its obligations or its ability to complete the Project under this Agreement.
3.5 No Violation of Law. The DEVELOPER represents and warrants to the CITY as of the date hereof that, to the best of the DEVELOPER's knowledge, this Agreement and the operation of the Project as contemplated by the DEVELOPER, do not violate any existing federal, State, or local laws of regulations.
3.6 No Litioation Material to Proiect. The DEVELOPER represents and warrants to the CITY as of the date hereof, except as disclosed to, and approved bythe CITY in writing, there is no action, proceeding, or investigation now pending, or any basis therefor known or believed to exist by the DEVELOPER that questions the validity of this Agreement, or of any action to be taken under this Agreement, that would, if adversely determined, materially or substantially impair the DEVELOPER's ability to perform and observe its obligations under this Agreement, or that would either directly or indirectly have an adverse effect or impair the completion of the Project.
3.7 Agqurance of Governmental Approvals and Licenses. The DEVELOPER represents and warrants to the CITY, as of the date hereof, that the DEVELOPER has obtained and, to the best of the DEVELOPER's knowledge, is in compliance with all federal, State, and local governmental reviews, consents, authorizations, approvals, and licenses presently required by law to be obtained by the DEVELOPER for the Project as of the date hereof.
ARTICLE 4. WARRANT AND COVENANTS OF THE DEVELOPER
The DEVELOPER, for itself and its development team represents and warrants that:
4.1 Accessibilitv. Applicable accessibility requirements, including, but not limited to, the following:
7 A. The design and construction requirements as required by the CITY's Universal Design Ordinance pursuant to Fresno Municipal Code 11-110, including, but not limited to the following requirements:
No step accessible entryway;
All interior doonruays and passageways at least 32 inches wide; iii. One (1) downstairs "flex room" and accessible bathroom with reinforcements for grab bars;
iv. Six square feet of accessible kitchen counter space; and v. Hallways at least 42 inches wide.
4.2 Affirmative Marketinq. The DEVELOPER warrants, covenants and agrees with the CITY that it shall comply with all affirmative marketing requirements to provide information and othenruise attract eligible persons from all racial, ethnic, and gender groups in the housing market in the sale of the Project Units. The DEVELOPER shall maintain records of actions taken to affirmatively market units constructed in the future, and to assess the results of these actions.
4.3 Availabilitv of PLHA Funds. The DEVELOPER understands and agrees that the availability of PLHA Funds is subject to the control of the State of California, or other, and should said PLHA Funds be encumbered, withdrawn or othenruise made unavailable to the CITY, whether earned by or promised to the DEVELOPER, and/or should the CITY in any fiscal year hereunder fail to allocate said Funds, the CITY shall not provide said PLHA Funds unless and until they are made available for payment to the CITY by the State of California and the CITY receives and allocates said PLHA Funds. No other funds owned or controlled by the CITY shall be obligated under this Agreement.
4.4 Comoliance with PLHA Aqreement. The DEVELOPER warrants, covenants and agrees that, in accordance with the requirements of the PLHA Guidelines, upon any uncured default by the DEVELOPER within the meaning of Article 10.1 of this Agreement, the CITY may suspend or terminate this Agreement and all other agreements with the DEVELOPER without waiver or limitation of rights/remedies otherwise available to the Clry.
4.5 Conflict of lnterest. The DEVELOPER warrants, covenants and agrees that it shall comply with the Conflict-of-lnterest requirements as set forth in the PLHA Final Guidelines, without limitation, that no officer, employee, agent, or consultant of the DEVELOPER may occupy a Project Unit. The DEVELOPER understands and acknowledges that no employee, agent, consultant, officer or elected official or appointed official of the CITY, who exercises any functions or responsibilities with respect to the Project, or who is in a position to participate in a decision making process or gain inside information with regard to these activities, may obtain a financial interest or benefit from the Project, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for him or herself or for anyone with which that person has family or business ties, during his or her tenure or for one year thereafter.
4.6 Construction Standards. The DEVELOPER shall construct the proposed Project Units assisted under this Agreement in compliance with all applicable local codes, ordinances, and zoning requirements in effect at the time of issuance of CITY building permits.
4.7 Covenants and Restrictions to Run with the Land. The CITY and the t.
ii
8 DEVELOPER expressly warrant, covenant and agree to ensure that the covenants and restrictions set forth in this Agreement are recorded and will run with the land, provided, however, that, on expiration of this Agreement such covenants and restrictions shall expire, provided that such agreements contain written provisions that are no more onerous and which are consistent with the customary standard requirements imposed by the financing source(s), on subordinate cash flow obligations under their then existing senior financing policies, and further provided that City Attorney approves such document(s) as to form.
A. The CITY and the DEVELOPER hereby declare their understanding and intent that the covenants and restrictions set forth herein directly benefit the land by:
(a) enhancing and increasing the enjoyment and purchase of the proposed Project by a certain Very Low- to Low-lncome Households, and (b) making possible the obtaining of advantageous financing for construction.
B. The DEVELOPER covenants and agrees with the CITY that after issuance of a recorded Certification of Completion for the Project until the expiration of the Affordability Period it shall cause 25 Affordable Units to be sold as Affordable Housing for Very Low- to Low-lncome households.
C. Without waiver or limitation, the CITY shall be entitled to injunctive or other equitable relief against any violation or attempted violation of any covenants and restrictions, and shall, in addition, be entitled to damages available under law or contract for any injuries or losses resulting from any violations thereof.
D. All present and future owners of the Property and other persons claiming by, through or underthem shall be subject to and shall comply with the covenants and restrictions. The acceptance of a deed of conveyance to the Property shall constitute an agreement that the covenants and restrictions, as may be amended or supplemented from time to time, are accepted and ratified by such future owners, tenant or occupant, and all such covenants and restrictions shall be covenants running with the land and shall bind any person having at any time any interest or estate in the Property, all as though such covenants and restrictions were recited and stipulated at length in each and every deed, conveyance, mortgage or lease thereof.
E. The failure or delay at any time of the CITY or any other person entitled to enforce any such covenants or restrictions shall in no event be deemed a waiver of the same, or of the right to enforce the same at any time orfrom time to time thereafter or an estoppel against the enforcement thereof.
4.8 Displacement of Persons. The DEVELOPER covenants and agrees with the CITY that it will take all reasonable steps to minimize the displacement of any persons (families, households, individuals, businesses, nonprofit organizations, and farms). The parties acknowledge and agree that the Property located at East Florence Avenue and South Plumas Street, Fresno, CA 93706 is currently vacant undeveloped land.
4.9 Lead-Based Paint. The DEVELOPER covenants and agrees with the CITY that it shall comply with all applicable requirements of the Lead-Based Paint Poisoning Prevention Actof 42 U.S.C. 4821 etseq., 24 C.F.R. Part 35, including the HUD 1012 Rule, and24 C.F.R. 982.401fi), and any amendment thereto, and Environmental Protection Agency (EPA) Section 402 (c)(3) of the Toxic Substances Control Act (TSCA) to address lead-based hazards created by renovation, repair, and painting activities that disturb lead-based paint in target housing and child-occupied facilities. Contractors performing renovations in lead- based paint units must be EPA-certified renovators. These requirements apply to all units I
and common areas of the Project. The DEVELOPER shall incorporate or cause incorporation of this provision in all contracts and subcontracts for work performed on the Project, which involve the application of paint. The DEVELOPER shall be responsible for all disclosure, inspection, testing, evaluation, and control and abatement activities.
4.10 Minoritv Outreach Activities. The DEVELOPER covenants and agrees with the CITY that it shall comply with all federal laws and regulations, without limitation, any requirement that the DEVELOPER comply with the CITY's minority outreach program.
4.11 Other Laws and Requlations. The DEVELOPER covenants and agrees with the CITY that, in addition to complying with the federal laws and regulations already cited in this Agreement, the DEVELOPER has reviewed, and shall comply with and require all its contractors and subcontractors on the Project to comply with, all other federal laws and regulations that may apply to the PLHA Program, including, without limitation, requirements of 24 C.F.R. 58.6 and the Flood Disaster Protection Act of 1973, as amended (42 U.S.C. 4001 -4128 the following:
A. The Project is not located in a tract identified by the Federal Emergency Management Agency as having special flood requirements.
B. The provisions of Section 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor Regulations (29 C.F.R. Part 5), regarding the construction and management of the proposed Project.
C. The DEVELOPER and its contractors, subcontractors and service providers for the Project, shall comply with all applicable local, State and federal requirements concerning equal employment opportunity, including compliance with Executive Order (E O.) 11246, "Equal Employment Opportunity", as amended by E.O. 11375, (amending E.O. 11246 Relating to Equal Employment Opportunity), and as supplemented by regulations at 41 C.F.R. part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor".
D. The provisions of the Copeland "Anti-Kickback" Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 C.F.R. part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States").
4.12 Reportinq Requirements. The DEVELOPER warrants, covenants and agrees with the CITY that it shall submit performance reports to the CITY as detailed in Section 7.17.
Furthermore, the DEVELOPER agrees to provide, at the sole cost of the DEVELOPER, an annual audited Financial Statement and residual receipts calculation for the Project expenses and ongoing financial transactions which occur as a result of this Agreement as detailed in Section 5.6. The DEVELOPER agrees to account for the expenditure of PLHA Funds using generally accepted accounting principles, which financial documentation shall be made available to the CITY and the State of California upon their respective written request(s).
4.13 Housino Affordabilitv. The DEVELOPER covenants and agrees with the CITY that 25 of the Project Units will be affordable to Very Low- to Low-lncome households and other PLHA requirements during the Affordability Period. Three PLHA Project Units, at a minimum, shall be sold and occupied by, or, if vacant, available for owner occupancy by those whose annual household income at the time of initial occupancy is not greater than 50% AMI for the Affordability Period, except upon foreclosure or other transfer in lieu of 10 foreclosure following default under a Deed of Trust. Twenty-Two PLHA Project Units, at a minimum, shall be sold and occupied by, or, if vacant, available for owner occupancy by those whose annual household income at the time of initial occupancy is not greater than 80% of the area median income for the Affordability Period, except upon foreclosure or other transfer in lieu of foreclosure following default under a Deed of Trust. However, if at any time following a transfer by foreclosure or transfer in lieu of foreclosure, but still during the Affordability Period, the owner of record prior to the foreclosure or transfer in lieu of foreclosure, or any newly formed entity that includes such owner of record with whom such owner of record has or had business ties, obtains an ownership interest in the Project or the Property, the Affordability Period shall be revived according to its originalterms. ln the event the DEVELOPER fails to comply with this Section 4.13, or the Affordability Period is not revived following transfer by foreclosure or transfer in lieu of foreclosure, the DEVELOPER shall return to the CITY all PLHA Funds disbursed to the DEVELOPER by the CITY.
4.14 Terminated Proiects. The DEVELOPER understands and agrees that, if the Project is terminated before completion, either voluntarily or othenruise, such constitutes an ineligible activity, and the Clry will not be required to provide any further PLHA Program assistance to the Project.
ARTICLE 5. PROPERTY MAINTENANCE
The DEVELOPER covenants and agrees to the following, for the entire term of the Agreement.
5.1 Adequate Repair and Maintenance. The DEVELOPER during its time on title shall cause the maintenance at the Project and Property to be in compliance with all applicable codes, laws, and ordinances. lf maintenance of the Project and Property has been delegated from Developer to a property management company, the CITY reserves the right to require the DEVELOPER to change the property management company for the Property if it is determined through annual property monitoring that the property management company is not performing satisfactorily.
5.2 Affordable Housinq. The DEVELOPER covenants and agrees that the Project shall constitute 33 Single-Family Housing Project Units with 25 Affordable Units thereof for sale and preserved as Very Low- to Low-lncome for sale housing as provided at 24 CFR
92.254 during the entire Affordability Period. This covenant shall remain in effect and run with and restrict the land during the entirety of the Affordability Period. In the event the DEVELOPER fails to comply with the time period in which the Project Units constitute affordable housing, the CITY shall without waiver or limitation, be entitled to injunctive relief, as the DEVELOPER acknowledges that damages are not adequate remedy at law for such breach.
5.3 Compliance with Environmental Laws. The DEVELOPER shall cause the PlHA-assisted Units to be in compliance with, and not to cause or permit the Project to be in violation of, any Hazardous Materials law, rule, regulation, ordinance, or statute. Although the CITY will utilize its employees and agents for regular inspection and testing of the eligible Property, the DEVELOPER agrees that, if the CITY has reasonable grounds to suspect any such violation, the DEVELOPER shall be entitled to 30 days' notice and opportunity to cure such violation. lf the suspected violation is not cured, the CITY shall have the right to retain an independent consultant to inspect and test the eligible Property for such violation. lf a violation is discovered, the DEVELOPER shall pay for the reasonable cost of the independent consultant.
11 Additionally, the DEVELOPER agrees:
A. That the CITY shall not be directly or indirectly responsible, obligated, or liable with the inspection, testing, removal, or abatement of asbestos or other hazardous or toxic chemicals, materials, substances, or wastes and that all cost, expense, and liability for such work shall be and remain solely with the DEVELOPER; B. Not to transport to, or from, the proposed Property, or use, generate, manufacture, produce, store, release, discharge, or dispose of on, under, or about the Property, or surrounding real estate, or transport to or from the project site, or surrounding real estate, any hazardous or toxic chemicals, materials, substance, or wastes or allow any person or entity to do so except in such amounts and under such terms and conditions permitted by applicable laws, rules, regulations, ordinances, and statutes;
C. To give prompt written notice to the CITY of the following:
(i) Any proceeding or inquiry by any governmental authority with respect to the presence of any hazardous or toxic chemicals, materials, substance, or waste in or on the eligible Property or the surrounding real estate or the migration thereof from or to other property;
(ii) All claims made or threatened by any third party against the DEVELOPER, or such properties relating to any loss or injury resulting from any hazardous or toxic chemicals, materials, substance, or waste; and (iii) The DEVELOPER's discovery of any occurrence or condition on any real property adjoining or in the vicinity of such properties that would cause such properties or underlying or surrounding real estate or part thereof to be subject to any restrictions on the ownership, occupancy, transferability, or use of the property under any environmental law, rule, regulation, ordinance, or statute; and
D. To indemnify, defend, and hold the CITY harmless from any and all claims, actions, causes of action, demand, judgments, damages, injuries, administrative orders, consent agreements, orders, liabilities, penalties, costs, expenses (including attorney's fees and expenses), and disputes of any kind whatsoever arising out of or relating to the DEVELOPER or any other party's use of release of any hazardous or toxic chemicals, materials, substance, or waste on the Property regardless of cause or origin, including any and all liability arising out of or relating to any investigation, site monitoring, containment, cleanup, removal, restoration, or related remedial work of any kind or nature.
5.4 liance with L The DEVELOPER shall promptly and faithfully comply with, conform to, and obey all present and future federal, State, and local statutes, regulations, rules, ordinances, and other legal requirements applicable by reason of this Agreement or othenrvise to the Project including without limitation prevailing wage requirements. The DEVELOPER acknowledges that the use of PLHA Funds subjects the Project to State of California regulations and covenants and agrees that it shall comply with, conform to, and obey (and take steps as are required of the DEVELOPER to enable the CITY to comply with, conform to and obey) all State of California regulations and laws applicable to the Project. DEVELOPER shall also comply with all mitigation measures and conditions identified in the Environmental Assessment for the Project. 12 5.5 Existence. Qualification, and Authoritv. The DEVELOPER shall provide to the CITY any evidence required or requested by the CITY to demonstrate the continuing existence, qualification, and authority of the DEVELOPER to execute this Agreement and to perform the acts necessary to carry out the Project.
5.6 Financial Statements and Audits. Annually, within 180 days following: 1) the end of fiscal year(s) in which the PLHA Funds are disbursed hereunder, and 2) the end of fiscal year(s) in which this contract shall terminate, and othenryise upon the CITY's, written request during the term of this Agreement, the DEVELOPER, at its sole cost and expense shall submit to the CITY:
A. Audited annual financial statement with notes that are current, signed, and prepared according to generally accepted accounting principles consistently applied (except as othenrvise disclosed therein).
B. Audited Financial Statements with the management notes covering the income and expenses, and the financial transactions for the Project during the prior fiscal year.
5.7 lnsneetion and Arrclit nf Rnnks Rceordq and Dncrr ments The DEVELOPER shall account for all PLHA Funds disbursed for the Project pursuant to this Agreement. Any duly authorized representative of the CITY or the State of California shall, at all reasonable times, have access to and the right to inspect, copy, make excerpts or transcripts, audit, and examine all books of accounts, records, files and other papers or property, and other documents of the DEVELOPER pertaining to the Project, or all matters covered in this Agreement and for up to six years after the expiration or termination of this Agreement.
A. The DEVELOPER will maintain books and records for the Project using generally accepted accounting principles. The DEVELOPER agrees to maintain books and records that accurately and fully show the date, amount, purpose, and payee of all expenditures financed with PLHA Funds and to keep all invoices, receipts and other documents related to expenditures financed with PLHA Funds for not less than six years afterthe expiration ortermination of the Agreement. Books and records must be kept accurate and current. For purposes of this section, "books, records and documents" include, without limitation; plans, drawings, specifications, ledgers, journals, statements, contracts/agreements, funding information, funding applications, purchase orders, invoices, loan documents, computer printouts, correspondence, memoranda, and electronically stored versions of the foregoing. This section shall survive the termination of this Agreement.
B. The CITY may audit any conditions relating to this Agreement at the CITY's expense, unless such audit shows a significant discrepancy in information reported by the DEVELOPER in which case the DEVELOPER shall bear the cost of such audit. The DEVELOPER shall also comply with any applicable audit requirements of the PLHA Guidelines Section 501. This section shall survive the termination of this Agreement.
C. The DEVELOPER will cooperate fully with the CITY and the State of California in connection with any interim or final audit relating to the Project that may be performed relative to the performance of this Agreement.
5.8 Inspection of Propertv. Any duly authorized representative of the CITY or the State of California shall, at all reasonable times and within 72 hours' written notice, have access and the right to inspect the Property until completion of the Project and expiration of 13 the applicable Affordability Period, subject to the rights of the tenants.
5.9 No Other Liens. The DEVELOPER shall not create or incur, or suffer to be created or incurred, or to exist, any additional mortgage, pledge, lien, charge, or other security interest of any kind on the eligible Property, other than those related to the Project's rehabilitation and construction loans in relation to the Project, consistent with the attached Budget, without the prior written consent of the CITY.
5.10 Nondiscrimination. The DEVELOPER shall comply with and cause any and all contractors and subcontractors to comply with any and all federal, State, and local laws with regard to illegal discrimination, and the DEVELOPER shall not illegally discriminate against any persons on account of race, religion, sex, family status, age, handicap, or place of national origin in its performance of this Agreement and the completion of the Project.
5.11 Ownership. Except as required in pursuit hereof, the DEVELOPER shall not sell, lease, transfer, assign or othenryise dispose ("Transfef') all or any material part of any interest it might hold in the Property or the Project without the prior written consent of the Clry, which consent shall not be unreasonably withheld or delayed. "Transfed' shall exclude the sale of a completed Single-Family Housing Unit in the Project to a Very Low- to Low- Income household.
A. The DEVELOPER shall request CITY's written approval of the granting of the security interests in the Property described in Section 5.9 above.
5.12 Pavment of Liabilities. The DEVELOPER shall pay and discharge in the ordinary course of its business all material obligations and liabilities, the nonpayment of which could have a material or adverse impact on its financial condition, business, or assets or on the operation of the Project, except such obligations and liabilities that have been disclosed to the CITY in writing and are being contested in good faith.
5.13 Report of Events of Default. The DEVELOPER shall promptly give written notice to the CITY upon becoming aware of any Event of Default under this Agreement.
ARTICLE 6. DISBURSEMENT OF PLHA FUNDS
Without waiver of limitation, the parties agree as follows, regarding PLHA Funds:
6.1 Loan Commitments and Financinq Plan. The DEVELOPER shall submit its most current Finance Plan for the Project to the Clry prior to Council approval and as other funding sources become part of the Project budget. The City shall approve the Finance plan so long as the Finance Plan is consistent with the Budget contained in EXHIBIT "C". The CITY shall accept the Finance Plan and supporting documentation such as commitment letters, letters of credit, agreements, and resolutions for proposed funding to the Project. lf the CITY disapproves the Finance Plan, it will specify the reason for the disapproval and ask the DEVELOPER to provide any additional information the CITY may need to approve the Finance Plan. The parties agree and acknowledge that this Agreement does not constitute a commitment of loan funds, and that such Loan Commitment or approval of Loan may occur only upon satisfactory completion of the environmental review of the Project. ln addition, no Loan Commitment shall be made until all requirements contained in this Agreement or another other loan, security or other related documents are met by the Developer, as determined by the CITY.
6.2 Finance Plan Content The Finance Plan shall contain all Project pre- construction, post-construction, and permanent loans or letters of commitment from one or more qualified public/private lenders or funding sources in sufficient amounts, combined with 14 any other DEVELOPER financing, for the DEVELOPER to complete rehabilitation/construction of the Project. The total amount of the liens to be recorded against the Property as presented in the Finance Plan shall not exceed the DEVELOPER's estimated construction Budget.
6.3 Use of PLHA Funds. The DEVELOPER warra nts, covenants and agrees that it shall request PLHA Funds only for reimbursement of eligible soft and construction costs incurred as identified in the itemized Budget, attached hereto as EXHIBIT'C', aggregating not more than Three Million Sixty-Two Thousand Six Hundred Eighty-Nine Dollars and 00/100 ($3,062,689.00). DEVELOPER may not incur costs to be paid with Loan funds for this Project until the CITY notifies the DEVELOPER that the environmental review has been approved and DEVELOPER is authorized to use Loan funds. The CITY's obligations shall in no event exceed the PLHA Funds amount specified in this Agreement.
A. lf any such Funds shall be determined to have been requested and/or used by the DEVELOPER for costs other than for eligible construction costs, and subject to the notice and cure provisions of Section 10.2 hereunder, an equal amount from nonpublic funds shall become immediately due and payable by the DEVELOPER to the CITY; provided, however, that the DEVELOPER shall, subject to its full cooperation with the CITY, be entitled to participate in any opportunity to remedy, contest, or appeal such determination.
B. In the event PLHA Funds are requested to reimburse Eligible Costs which subsequently lose eligibility as Eligible Costs, the DEVELOPER shall immediately return such PLHA Funds to the CITY.
C. The CITY will disburse PLHA Funds to the DEVELOPER through proper invoicing for eligible construction costs of the Affordable Units as provided in this Article 6.
6.4 Conditions Precedent to Disbursement. The CITY shall not be obligated to make or authorize any disbursements of PLHA Funds unless the following conditions are satisfied:
A. There exists no Event of Default as provided in Article 10, nor any act, failure, omission, or condition that with the passage of time or the giving of notice or both would constitute an Event of Default.
B. The DEVELOPER has received and delivered to the CITY firm commitments of, or Agreements for, sufficient funds to finance the Project.
C. The DEVELOPER, at its sole cost and expense, has obtained all permits and approvals necessary for the construction of the Project as set forth in Section
7.11. D. The CITY has approved the requested reimbursement of eligible construction Project costs.
E. The DEVELOPER has obtained insurance coverage and delivered to the City for approval, evidence of insurance as required in Article 9.
F. The DEVELOPER is current with its compliance of reporting requirements set forth in this Agreement.
G. The DEVELOPER has provided the CITY with a written request for PLHA Funds (provided by the CITY), for reimbursement of eligible construction 15 Project costs and detailing such Eligible Costs applicable to the request.
H. The CITY has received certification required by Section 6.6 of this Agreement.
l. The Clry has received, and continues to have the right to disburse, PLHA Funds.
J. The Developer has received environmental clearance for the Project on the Property.
6.5 Requests for Reimbursement of PLHA Funds. The DEVELOPER shall request that the CITY reimburse funds for eligible soft and construction costs using the CITY's Request for Disbursement of Funds form. The DEVELOPER shall only request a maximum of Three Million Sixty-Two Thousand Six Hundred Eighty-Nine Dollars and 00/100 ($3,062,689.00) in PLHA Program assistance for the PLHA Units. All requests should provide in detail such Eligible Costs applicable to the request. All requests for PLHA Funds shall be accompanied with the Certification required by Section 6.6 of this Agreement.
6.6 DEVELOPER Certification. The DEVELOPER shall submit to the CITY a written certification that, as of the date of the Request for Reimbursement (Certification):
A. The representations and warranties contained in or incorporated by reference in this Agreement continue to be true, complete, and accurate in material respects.
B. The DEVELOPER has carried out its obligations and is in compliance with all the obligations or covenants specified in this Agreement, to the extent that such obligations or covenants are required to have been carried out or are applicable at the time of the Request for Reimbursement; and
C. The DEVELOPER has not committed or suffered an act, event, occurrence, or circumstance that constitutes an Event of Default or that with the passage of time or giving of notice or both would constitute an Event of Default; and D. The disbursement of funds shall be used solely for reimbursement of Eligible construction Costs identified in this Agreement and must by supported by the itemized obligations that have been properly incurred, expended and are properly chargeable in connection with construction of the Project.
6.7 Disbursement of Funds. The disbursement of PLHA Program Loan Funds shall occur within the normal course of CITY business (approximately 30 days) after the CIT\ receives the Certification and Request for Reimbursement with correct supporting documentation and to the extent of annually allocated and available PLHA Funds.
ARTICLE 7. CONSTRUCTION OF THE PROJECT
Without waiver of limitation, the parties agree as follows:
7.1 Pre-Construction Meetino Reoardi PLHA Proqram Processes and Procedures. The City may schedule, and the DEVELOPER shall attend, a meeting prior to construction for the purpose of outlining the Project processes and procedures.
7.2 Commencement and Completion of Proiect. The DEVELOPER shall commence construction of the Project, and when completed, record a Notice of Completion of construction of the Project in accordance with the Project Schedule as identified in EXHIBIT "B" and provide the CITY with a copy of the recordation. 16 7.3 Contracts and Subcontracts. Consistent with Section 5.3, all hazardous waste abatement, construction work and professional services for the Project shall be performed by persons or entities licensed or othenruise legally authorized to perform the applicable work or service in the State of California and the City of Fresno. The DEVELOPER shall provide the CITY with copies of all agreements it has entered into with any and all general contractors or subcontractors for this Project. The DEVELOPER shall require that each such general contractor agreement contain a provision whereby the party(ies) to the agreement, other than the DEVELOPER, agree to: (i) notify the CITY immediately of any event of default by the DEVELOPER thereunder, (ii) notify the CITY immediately of the filing of a mechanic's lien, (iii) notify the CITY immediately of termination or cancellation of the construction agreement on the Project, and (iv) provide the CITY, upon the CITY's request, an Estoppel Certificate ceftifying that the agreement is in full force and effect and the DEVELOPER is not in default thereunder. The DEVELOPER agrees to notify the CITY immediately of termination or cancellation of any such agreement(s), notice of filing of a mechanic's lien, or breach or default by other party(ies) thereto.
7.4 Damaqe to Propertv. To the extent consistent with the requirements of any permitted encumbrance, or as otherwise approved by the CITY, and subject to Article 9 of this Agreement, if any building or improvement constructed on the Property is damaged or destroyed by an insurable cause, the DEVELOPER shall, at its cost and expense, diligently undertake to repair or restore said buildings and improvements consistent with the original Plans and Specifications of the Project. Such work or repair shall occur within 90 days after the insurance proceeds are made available to the DEVELOPER and shall be completed within two years thereafter. All insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose, the DEVELOPER shall use its best efforts to make up the deficiency.
7.5 Fees, Taxes and Other Levies. The DEVELOPER shall be responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Property or the Project and shall pay such charges prior to delinquency. However, the DEVELOPER shall not be required to pay and discharge any such charge so long as: (a) the legality thereof is being contested diligently and in good faith and by appropriate proceedings, and (b) if requested by the CITY, the DEVELOPER deposits with the CITY any funds or other forms of assurances that the CITY, in good faith, may determine from time to time are appropriate to protect the CITY from the consequences of the contest being unsuccessful. The DEVELOPER shall have the right to apply for and obtain an abatement and/or exemption of the Project from real property taxes in accordance with all applicable rules and regulations, including Section 214(g) of the California Revenue and Taxation Code.
7.6 Financino. The DEVELOPER shall promptly inform the CITY of any new financing or funding not included in the budget for the Project, and the DEVELOPER shall provide the CITY with copies of all agreements with funding sources for the Project. The DEVELOPER shall require each agreement with all funding sources not included in the Budget to contain a provision whereby the party(ies) to the agreement other than the DEVELOPER, if permitted by the party(ies) applicable rules and regulations, agree to notify the CITY immediately of any event of default by the DEVELOPER thereunder. Should the DEVELOPER not comply with all the obligations of this section, the loan shall become immediately due and payable as provided for in this Agreement. This Section shall survive expiration or termination of this Agreement.
17 7.7 Inspections. The DEVELOPER shall permit, facilitate, and require its contractors and consultants to permit and facilitate observation and inspection at the job site by the CITY and other public authorities during reasonable business hours, for the purpose of determining compliance with this Agreement, including without limitation those annual on- site Property inspections required of the CITY by 24 CFR 92.504(d).
7.8 Utilities. The DEVELOPER shall be responsible, at its sole cost and expense, to determine the location of any utilities on the Property and to negotiate with the utility companies for, and to relocate the utilities, if any, as necessary to complete the Project.
7.9 lnsurance and Bonds. The DEVELOPER shall submit for CITY approval bonds, certificates and applicable endorsements for all insurance and bonds required by this Agreement in accordance with Article 9.
7.10 Mechanic's Liens and Stop Notices. lf any claim of lien is filed against the Property or a stop notice affecting any financing, PLHA Program Funds or funding sources for the Project is serued on the Clry or any other third party in connection with the Project, the DEVELOPER shall, within 20 days of such filing or service, either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to the CITY a surety bond in sufficient form and amount, or provide the CITY with other assurance satisfactory to the CITY that the claim of lien or stop notice will be paid or discharged.
A. lf the DEVELOPER fails to discharge, bond, or othenryise satisfy the CITY with respect to any lien, encumbrance, charge, or claim refened to in Section
7.10 above, then, in addition to any other right or remedy, the CITY may, but shall not be obligated to, discharge such lien, encumbrance, charge, or claim at the DEVELOPER's expense. Alternatively, the CITY may require the DEVELOPER to immediately deposit with the Clry the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof. The CITY may use such deposit to satisfy any claim or lien that is adversely determined against the DEVELOPER. The DEVELOPER hereby agrees to indemnify and hold the CITY harmless from liability for such liens, encumbrances, charges or claims together with all related costs and expenses.
7.11 Permits and Licenses. The DEVELOPER shall submit, for CITY approval, all the necessary permits and licenses required for commencement of the construction. As the CITY may reasonably request, the DEVELOPER, at its sole cost and expense, shall provide to the CITY copies of any and all permit approvals and authorizations including plot plan, plat, zoning variances, sewer, building, grading, demolition, and other permits required by governmental authorities other than the CITY in pursuit of the Project, and for its stated purposes in accordance with all applicable building, environmental, ecological, landmark, subdivision, zoning codes, laws, and regulations. The DEVELOPER is responsible at its sole cost and expense to determine the location of any utilities on the Property and to negotiate with the utility companies for and to relocate the utilities, if any, as necessary to complete the Project.
7.12 Plans and Specifications. The DEVELOPER has submitted to the CITY preliminary plans and specifications forthe Project underApplication number P22-04457 and Development Permit Application number P23-02692 (Project Preliminary Plans). The DEVELOPER will construct the Project in full conformance with the C|TY-approved Development Permit and plans and specifications and modifications thereto approved by the CITY. The DEVELOPER shall obtain the CITY's priorwritten approval for any modifications to the plans and specifications.
18 A. The PLHA Agreement shall contain by reference the design and site plan of the Project; such design must be approved by the City Council with the PLHA Agreement.
B. Before commencement of construction, the DEVELOPER shall submit to the CITY, for its review and approval, the final Plans and Specifications for the Project. The DEVELOPER will construct the Affordable Housing in full conformance with the Plans and Specifications and modifications thereto approved by the Clry.
The DEVELOPER shall obtain the CITY's prior written approval for any modifications to the Plans and Specifications.
7.13 Proiect Responsibilities/Public Work-Prevailinq Wase Requirements. The DEVELOPER shall be solely responsible for all aspects of the DEVELOPER's conduct in connection with the Project, including but not limited to, compliance with all local, State and federal laws including without limitation, as to prevailing wage and public bidding requirements. The Council of the City of Fresno has adopted Resolution No. 82-297 ascertaining the general prevailing rate of per diem wages and per diem wages for holidays and overtime in the Fresno area for each craft, classification or type of workman needed in the execution of contracts for the CITY. A copy of the resolution is on file at the Office of the City Clerk, City Hall, second floor. Actual wage schedules are available upon request at the City's Construction Management Office, 1721 Yan Ness Avenue. Without limiting the foregoing, the DEVELOPER shall be solely responsible for the quality and suitability of the work completed and the supervision of all contracted work, qualifications and financial conditions of and performance of all contracts, subcontractors, consultants and suppliers.
Any review or inspection undertaken by the CITY with reference to the Project and/or payroll monitoring/auditing is solely for the purpose of determining whether the DEVELOPER is properly discharging its obligation to the CITY and shall not be relied upon by the DEVELOPER or by any third parties as a warranty or representation by the CITY as to governmental compliance and/or the quality of work completed for the Project.
7.14 Propeftv Condition. While on title, the DEVELOPER shall maintain the Project and all improvements on site in a reasonably good condition and repair (and, as to landscaping, in a healthy condition), all according to the basic design and related plans, as amended from time to time. The DEVELOPER and those taking direction under the DEVELOPER shall: (i) maintain all on-site improvements according to all other applicable law, rules, governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials; (ii) keep the improvements free from graffiti; (iii) keep the Project Property free from any accumulation of debris or waste material; (iv) promptly make repairs and replacements to on-site improvements; (iv) promptly replace any dead, or diseased plants and/or landscaping (if any) with comparable materials, and (v) enforce tenant lease terms.
7.15 Qualitv of Work. The DEVELOPER shall ensure that construction of the Project employs building materials of a quality suitable for the requirements of the Project. The DEVELOPER shall cause completion of the construction of the Project on the Property in full conformance with applicable local, State, and federal laws, statutes, regulations, and building and safety codes.
7.16 Relocation. lf and to the extent that the proposed Project results in the permanent or temporary displacement of residential tenants, the DEVELOPER shall comply with all applicable local, State, and federal statutes and regulations with respect to relocation planning, advisory assistance, and payment of monetary benefits. The DEVELOPER shall 19 be solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying with said relocation laws.
7.17 Reportinq Requirements. The DEVELOPER shall submit to the CITY the following Project reports:
A. From the date of execution of this Agreement, until the DEVELOPER records a Notice of Completion, the DEVELOPER shall submit a Quarterly Report, in a form approved by the CITY, which will include, at a minimum, the following information: progress of the Project and affirmative marketing efforts. The Quarterly Reports are due 15 days after each March 31st, June 30th, September 30th, and December 31st, during said period.
B. Annually, beginning on the first day of the month following the DEVELOPER's Notice of Completion, and continuing until the termination of the Agreement, the DEVELOPER shall require the homebuyer through an agreement to purchase, to submit annual income certification to the Clry, in a form provided by the CITY. The annual owner certification shall include, at a minimum, the following information: occupancy of each Project Unit including the annual income and the household size, the date occupancy commenced, signed owner certification, and such other information the CITY may be required by law to obtain.
C. Annually, beginning on the first day of the month following the CITY's issuance of the Certificate of Completion, evidencing the construction of the Project, and continuing until the expiration of the Agreement, the DEVELOPER shall require the homebuyer through an agreement to purchase, to submit proof of property.
D. The Project LP entity shall pay to the CITY an annual fee to cover the CITY's actual costs of monitoring the Project during the Period of Affordability. The Annual PLHA Monitoring Fee shall be in an amount reflecting the CITY's actual costs of monitoring, oversight, and physical inspection of the Project. Monitoring fees shall be paid in an amount not to exceed $5,000 per calendar year, beginning on the date the Project receives its certificate of occupancy, and may increase each year thereafter by up to 3%.
E. Annually, beginning on the first day of the month following completion of the project, the DEVELOPER shall submit proof of property and liability insurance, as required in Article 9, listing the CITY as loss payee.
7.18 Scheduling and Extension of Time; Unavoidable Delay in Performance. lt shall be the responsibility of the DEVELOPER to coordinate and schedule the work to be performed so that the commencement of the construction and issuance of the Notice of Completion will take place in accordance with the provisions of the Agreement and Project Schedule. The time for performance contained in the Project Schedule shall be automatically extended upon the following:
A. The time for performance of provisions of the Agreement by either party shall be extended for a period equal to the period of any delay directly affecting the Project or this Agreement which is caused by: war, insurrection, strike or other labor disputes, lock-outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of a public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits filed by third parties concerning or arising out of this Agreement, or unseasonable weather conditions (force majeure). An extension of time for any of the above specified causes will be granted only if written notice by the party claiming 20 such extension is sent to the other party within ten calendar days from the date the affected party learns of the commencement of the cause and the resulting delay and such extension of time is accepted by the other party in writing. In any event, the Project must be completed no later than 180 calendar days after the scheduled completion date specified in this Agreement, notwithstanding any delay caused by that included in this section.
B. Any and all extensions hereunder shall be by mutual written agreement of the CITY's Housing and Community Development Division Manager and the DEVELOPER, which shall not cumulatively exceed 180 days.
7.19 Proiect Completion. Upon completion of the construction of the Project, the DEVELOPER shall submit to the CITY: 1) certification in writing to that the Project has been substantially constructed in accordance with the plans and specifications, approved by the CITY; 2) a recorded Notice of Completion; 3) a cost-certifying final budget where the DEVELOPER shall identify the actual costs of construction of the Project. This final cost- certification shall identify costs in line-item format, consistent with the Project Budget. Upon a determination by the CITY that the DEVELOPER is in compliance with all of the DEVELOPER's construction obligations, as specified in this Agreement. Upon the DEVELOPER taking the specified measures and meeting the specified standards, the DEVELOPER will certify to the CITY in writing.
ARTICLE 8. OPERATIONS OF THE PROJECT
8.1 Operation of the Proiect. The DEVELOPER shall sell the PLHA Units in full conformity with the terms of this Agreement.
8.2 Occupancv Requirements. Three of the PLHA Units shall be sold and occupied by, or if vacant, available for owner occupancy by those whose annual household income at the time of initial occupancy is not greater than 50% of the most recent annual median income, calculated and published by the State for the Fresno Metropolitan Statistical Area, applicable to such household's size, and at an affordable resident consistent with PLHA Program Guidelines. Twenty-Two of the PLHA Units shall be sold and occupied by, or if vacant, available for owner occupancy by those whose annual household income at the time of initial occupancy is not greater than 80% of the most recent annual median income, calculated and published by the State forthe Fresno Metropolitan StatisticalArea, applicable to such household's size, and at an affordable resident consistent with PLHA Program Guidelines for the term of this Agreement. The DEVELOPER shall comply with the income targeting requirements.
8.3 Final Manasement Plan. Before marketing any PLHA Unit and at least 60 calendar days prior to the construction Completion Date of the first Project Unit, the DEVELOPER shall submit to the CITY, for review and approval, a plan, for marketing the Project Unit(s) (Fair Marketing Plan). The Fair Marketing Plan shall address in detail how the DEVELOPER or its designated management company plans to market the availability Project Units to prospective low-income purchasers and how the DEVELOPER plans to certify the eligibility of potential buyers. The Fair Marketing Plan shall contain detailed descriptions of policies and procedures with respect to buyer selection(s). Topics to be covered in these procedures shall include at a minimum the following:
o Interviewing procedures for prospective buyers;
. Buyer references;
. Credit reports and checks;
21 Deposit amounts, purpose, use and refund policy;
EmploymenVl ncome verification ;
Occupancy restrictions;
Income Limits;
Equal Housing Opportunity Statement; and
Restrictions on use of the premises and Program Income
The Final Marketing Plan shall contain copies of all standardized forms associated with the above-listed topics.
The DEVELOPER shall abide by the terms of this Final Marketing Plan, approved by the CITY, in marketing, managing, and selling the Housing Units.
8.4 Maintenance and Securitv. The DEVELOPER shall (i) at its own expense maintain the Project in good condition, in good repair and in decent, safe, sanitary, habitable and tenantable living conditions for the benefit of the Project Unit occupants. The DEVELOPER shall not commit or permit any waste on or to the Project and shall prevent and/or rectify any physical deterioration of the Project. The DEVELOPER shall maintain the Units in conformance with all applicable federal, State, and local laws, ordinances, codes and regulations, the Property Management Plan, and this Agreement.
8.5 Nondiscrimination. The PLHA Units shall be available for owner-occupied households who are income eligible. The DEVELOPER shall not illegally discriminate or segregate in the constructed complex, the use, enjoyment, occupancy or conveyance of any part of the Project or Property on the basis of race, color, ancestry, national origin, religion, sex, marital status, family status, source of income/rental assistance subsidy, physical or mental disability, Acquired lmmune Deficiency Syndrome (AIDS) or AIDS-related conditions (ARC), sexual orientation, or any other arbitrary basis. The DEVELOPER shall othenruise comply with all applicable local, State, and federal laws concerning nondiscrimination in housing. Neither the DEVELOPER nor any person claiming under or through the DEVELOPER, shall establish or permit any such practice or practices of illegal discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants or vendees of any Affordable Unit or in connection with employment of persons for the construction of any Project Unit. All deeds or contracts made or entered into by the DEVELOPER as to the Affordable Units or the Project or portion thereof, shall contain covenants concerning nondiscrimination consistent with this section. The DEVELOPER shall include a statement in all advertisements, notices, and signs for availability of Affordable Housing Units for rent to the effect that the DEVELOPER is an Equal Housing Opportunity Provider.
A. Nothing in this section is intended to require the DEVELOPER to change the character, design, use or operation of the Project; or to require the DEVELOPER to obtain licenses or permits other than those required for the Project.
ARTICLE 9. INSURANCE AND INDEMNITY AND BONDS
Without waiver of limitation, the parties agree as follows regarding the DEVELOPER'S lnsurance and lndemnity Obligations:
9.1 Insurance Requirements. (a) Throughout the life of this Agreement, DEVELOPER shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated no less than "A-Vll" in the 22 Best's lnsurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured.
(b) lf at any time during the life of the Agreement or any extension, DEVELOPER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve DEVELOPER of its responsibilities under this Agreement. The phrase "fail to maintain any required insurance" shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by DEVELOPER shall not be deemed to release or diminish the liability of DEVELOPER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by DEVELOPER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of DEVELOPER, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them.
Coverage shall be at least as broad as:
(i) COMMERCIAL GENERAL LlABlLlry insurance which shall be at least as broad as the most current version of Insurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than the following:
$2,000,000 per occurrence for bodily injury and property damage $2,000,000 per occurrence for personal and advertising injury $4,000,000 aggregate for products and completed operations $4,000,000 general aggregate applying separately to work performed under the Agreement
(ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1-Any Auto) with limits of liability of not less than $1,000,000 per accident for bodily injury and property damage.
(iii) WORKERS' COMPENSATION insurance as required under the California Labor Code. 23 (iv) EMPLOYEE LIABILITY insurance with limits of liability of not less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 diseased each employee. (v) BUILDERS RISK (Course of Construction) insurance, obtained by the DEVELOPER or subcontractor in an amount equal to the completion value of the Project with no coinsurance penalty provisions. (Only required if the project includes new construction of a building; or renovation of, or addition to, an existing building.)
(vi) CONTRACTOR POLLUTION with coverage for bodily injury, property damage or pollution clean-up costs that could result from of pollution condition, both sudden and gradual. lncluding a discharge of pollutants brought to the work site, a release of pre-existing pollutants at the site, or other pollution conditions with limits of liability of not less than the following:
$1,000,000 per occurrence
$2,000,000 general aggregate per annual policy period
ln the event the work involves any lead-based, mold or asbestos environmental hazard, either the Automobile Liability insurance policy or the Pollution Liability insurance policy shall be endorsed to include Transportation Pollution Liability insurance covering materials to be transported by the DEVELOPER pursuant to the SLFRF Agreement. ln the event the work involves any lead-based environmental hazard (e.9., lead- based paint), the DEVELOPER's Pollution Liability insurance policy shall be endorsed to include coverage for lead based environmental hazards. ln the event the DEVELOPER involves any asbestos environmental hazard (e.9., asbestos remediation), the DEVELOPER's Pollution Liability insurance policy shall be endorsed to include coverage for asbestos environmental hazards. f n the event the SLFRF Agreement involves any mold environmental hazard (e.9., mold remediation), the Pollution Liability insurance policy shall be endorsed to include coverage for mold environmental hazards and "microbial matter including mold" within the definition of "Pollution" under the policy.
UMBRELLA OR EXCESS INSURANCE
ln the event DEVELOPER purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). ln addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SE NSURED RETENTIONS
CONTRACTOR shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and CONTMCTOR shall also be responsible for payment of any self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar day written notice has been given to the CITY. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, the DEVELOPER shallfurnish the CITY with a new certificate and applicable endorsements for such policy(ies). ln the event any policy is due to expire during the work to be performed forthe CITY, the DEVELOPER shall provide a new certificate, and applicable endorsements, 24 evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.
The General Liability, Pollution and Automobile Liability insurance policies shall be written on an occurrence form.
The General Liability, Automobile Liability and Pollution Liability insurance policies shall name the CITY, its officers, officials, agents, employees, and volunteers as an additional insured for ongoing and completed operations. All such policies of insurance shall be endorsed so the DEVELOPER's insurance shall be primary and no contribution shall be required of the CITY.
The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, officials, employees, agents, and volunteers. lf the DEVELOPER maintains higher limits of liability than the minimums shown above, the Clry requires and shall be entitled to coverage for the higher limits of liability maintained by the DEVELOPER.
The Builders Risk (Course of Construction) insurance policy shall be endorsed to name the Clry as loss payee.
All insurance policies required including the Workers' Compensation insurance policy shall contain a waiver of subrogation as to the City, its officers, officials, agents, employees, and volunteers.
The DEVELOPER shall furnish the CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY's Risk Manager or his/her designee before work commences. Upon request of the Clry, the DEVELOPER shall immediately furnish the CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the undenruriter to be a true and correct copy of the original policy. This requirement shall survive expiration ortermination of this Agreement. ln the event of a partial or total destruction by the perils insured against of any or all of the work and/or materials herein provided for at any time prior to the final completion of the Agreement and the final acceptance by the CITY of the work or materials to be performed or supplied thereunder, the DEVELOPER shall promptly reconstruct, repair, replace, or restore allwork or materials so destroyed or injured at his/her sole cost and expense. Nothing herein provided for shall in any way excuse the DEVELOPER or his/her insurance company from the obligation of furnishing all the required materials and completing the work in full compliance with the terms of this Agreement.
SUBCONTRACTORS
lf DEVELOPER subcontracts any or all of the services to be performed underthis Agreement, DEVELOPER shall require, at the discretion of the CITY Risk Manager or designee, subcontracto(s) to enter into a separate Side Agreement with the CITY to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. lf no Side Agreement is required, CONTRACTOR will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. 25 9.2 lndemnification. To the furthest extent allowed by law, DEVELOPER shall indemnify, hold harmless and defend the Clry and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by the CITY, the DEVELOPER or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees, litigation expenses, and costs to enforce this agreement), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. The DEVELOPER's obligations under the preceding sentence shall apply regardless of whether the CITY or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs, or damages caused by the active negligence or by the willful misconduct of the Clry or any of its officers, officials, employees, agents, or volunteers. lf DEVELOPER should subcontract all or any portion of the work to be performed under this Contract, DEVELOPER shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
9.3 Propertv lnsurance. The DEVELOPER shall maintain in full force and effect, throughout the remaining life of this Agreement, a policy or policies of property insurance acceptable to the CITY, covering the Project premises, with limits reflective of the value of the Project premises upon issuance of the Certificate of Completion or substantial completion of the project referenced in this agreement, including fire and Extended Comprehensive Exposure (ECE) coverage in an amount, form, substance, and quality as acceptable to the CITY's Risk Manager. The CITY shall be added by endorsement as a loss payee thereon.
9.4 Bond Obliqations. The DEVELOPER or its General Contractor shall periodically obtain, pay for, and deliver good and sufficient payment and performance bonds along with a Primary Obligee, Co-Obligee or Multiple Obligee Rider in a form acceptable to the CITY from a corporate surety, admitted by the California Insurance Commissioner to do business in the State of California and Treasury-listed, in a form satisfactory to the CITY and naming the CITY as Obligee (cumulatively, the "Bonding"). DEVELOPER or its General Contractor, as the case may be, shall deliver sufficient evidence of Bonding prior to commencing each Phase of the Project. Once a Ceftificate of Occupancy has been issued for a particular Phase of the Project and all other requirements contained herein are fully satisfied, the Bonding requirements for that Phase of the Project shall cease and DEVELOPER or General Contractor, as the case may be, shall deliver evidence that the next Phase of the Project is subject to sufficient Bonding, as provided herein.
A. The "Faithful Performance Bond" shall be at least equal to 100% of the DEVELOPER's estimated construction costs as reflected in the DEVELOPER's pro forma budget, attached hereto as EXHIBIT "C', to the guarantee faithful performance of the Project, within the time prescribed, in a manner satisfactory to the CITY, consistent with this Agreement, and that all material and workmanship will be free from original or developed defects.
B. The "Payment Bond" shall be at least equal to 100% of construction costs approved by the CITY to satisfy claims of material supplies and of mechanics and laborers employed for this Project. The bond shall be maintained by the DEVELOPER in full force and effect until the Project is completed and until all claims 26 for materials and labor are paid and as required by the applicable provisions of Chapter 7, Title 15, Part 4, Division 3 of the California Civil Code.
C. The "Material and Labor Bond" shall be at least equal to 100% of the DEVELOPER's estimated construction costs as reflected in the DEVELOPER's pro forma budget, attached hereto as EXHIBIT'C", to satisfy claims of material supplies and of mechanics and laborers employed for this Project. The bond shall be maintained by the DEVELOPER in full force and effect until the Project is completed, and until all claims for materials and labor are paid, released, ortime barred, and shall othenrvise comply with any applicable provision of the California Code.
ARTICLE 10. DEFAULT AND REMEDIES
10.1 Events of Default. The parties agree that each of the following shall constitute an "Event of Default" by the DEVELOPER for purposes of this Agreement after the cure period in Section 10.2 has expired without a cure:
A. The DEVELOPER's use of PLHA Funds for costs other than Eligible Costs or for uses not permitted by the terms of this Agreement; B. The DEVELOPER's failure to obtain and maintain the insurance coverage required under this Agreement;
C. Except as otherurise provided in this Agreement, the failure of the DEVELOPER to punctually and properly perform any other covenant or agreement contained in this Agreement including without limitation the following: (1) the DEVELOPER's material deviation in the Project work specified in the Project Description as identified in this Agreement, without the CITY's prior written consent; (2) the DEVELOPER's use of defective or unauthorized materials or defective workmanship in pursuit of the Project; (3) the DEVELOPER's failure to commence or complete the Project, as specified in this Agreement, unless delay is permitted under Section 7.18 of this Agreement; (4) cessation of the Project for a period of more than 15 consecutive days (other than as provided at Section 7.18 of this Agreement) prior to submitting to the CITY certification that the Project is complete; (5) any material adverse change in the condition of the DEVELOPER or its development team, or the Project that gives the CITY reasonable cause to believe that the Project cannot be completed by the scheduled completion date according to the terms of this Agreement; (6) the DEVELOPER's failure to remedy any deficiencies in record keeping or failure to provide records to the CITY upon the CITY's request; (7) the DEVELOPER's failure to comply with any federal, State or local laws or applicable CITY restrictions governing the Project, including but not limited to provisions of this Agreement pertaining to equal employment opportunity, nondiscrimination and lead- based paint;
D. Any representation, warranty, or certificate given or furnished by or on behalf of the DEVELOPER shall prove to be materially false as of the date of which the representation, warranty, or certification was given, or that the DEVELOPER concealed or failed to disclose a material fact to the CITY, provided, however, that if any representation, warranty, or certification that proves to be materially false is due merely to the DEVELOPER's inadvertence, the DEVELOPER shall have a 30 day opportunity after written notice thereof to cause such representation, warranty, or certification to be true and complete in every respect; 27 E. The DEVELOPER shall file, or have filed against it, a petition of bankruptcy, insolvency, or similar law, State or federal, or shall file any petition or answer seeking, consenting to, or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief, and such petition shall not have been vacated within 90 days; or shall be adjudicated bankrupt or insolvent, under any present or future statute, law, regulation, under State or federal law, and such judgment or decree is not vacated or set aside within 90 days; F. The DEVELOPER's failure, inability or admission in writing of its inability to pay its debts as they become due or the DEVELOPER assignment for the benefit of creditors;
G. A receiver, trustee, or liquidator shall be appointed for the DEVELOPER or any substantial part of the DEVELOPER's assets or properties, and not be removed within ten days;
H. The DEVELOPER's breach of any other material condition, covenant, warranty, promise, or representation contained in this Agreement not othenruise identified within this Section.
l. Any substantial or continuous breach by the DEVELOPER of any material obligation owned by the DEVELOPER imposed by any other agreement with respect to the financing, of the Project, whether or not the CITY is a party to such agreement after expiration of all notice and cure periods contained within such document.
10.2 Notice of Default and Opportunitv to Cure. The CITY shall give written notice to the DEVELOPER of any Event of Default by specifying: (1) the nature of the event or deficiency giving rise to the default; (2) the action required to cure the deficiency, if any action to cure is possible, and (3) a date, which shall not be less than the lesser of any time period provided in this Agreement, any time period provided for in the notice no less than ten days, or 30 calendar days from the date of the notice, by which such deficiency must be cured, provided that if the specified deficiency or default cannot reasonably be cured within the specified time, with the CITY's written consent, the DEVELOPER shall have an additional reasonable period to cure so long as it commences cure within the specified time and thereafter diligently pursues the cure in good faith. The CITY acknowledges and agrees that the DEVELOPER shall have the right to cure any defaults hereunder and that notice, and cure rights hereunder shall extend to any and all partners of the DEVELOPER that are previously identified in writing delivered to the CITY in the manner provided in this Agreement.
10.3 Remedies Upon an Event of Default. U pon the happening of an Event of Default and a failure to cure said Event of Default within the time specified, the CITY's obligation to disburse PLHA Funds shall terminate. The CITY may also at its option and without notice institute any action, suit, or other proceeding in law, in equity or othenryise, which it shall deem necessary or proper for the protection of its interests and may without limitation proceed with any or all of the following remedies in any order or combination that the CITY may choose in its sole discretion:
A. Terminate this Agreement immediately upon written notice; B. Bring an action in equitable relief: (1) seeking specific performance of the terms and conditions of this Agreement, and/or (2) enjoining, abating or preventing any violation of said terms and conditions, and/or (3) seeking declaratory relief; 28 C. Pursue any other remedy allowed by law or in equity or under this Agreement.
ARTICLE 11. GENERAL PROVISIONS
Without waiver of limitation, the parties agree that the following general provisions shall apply in the performance hereof:
11.1 Amendments. No modification or amendment of any provision of this Agreement shall be effective unless made in writing and signed by the parties hereto. The City recognizes that other Project funding may require revisions to the Loan Documents to be consistent with their funding and investing requirements. The Clry agrees to reasonably consider and negotiate as to any reasonable amendments to this Agreement to address such requirements, subject to approval as to form by the City Attorney's Office. Any material changes shall require further City Council approval.
11.2 Attornev's Fees. lf either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party will be entitled to recover from the other party its reasonable attorney's fees and legal expenses.
11.3 Bindinq on All Successors and Assiqns. Unless otherwise expressly provided in this Agreement, all the terms and provisions of this Agreement shall be binding on and inure to the benefit of the parties hereto, and their respective heirs, successors, assigns, and legal representatives.
11.4 Counterparts. This Agreement may be executed in counterparts, each of which when executed and delivered will be deemed an original, and all of which together will constitute one instrument. The execution of this Agreement by any party hereto will not become effective until counterparts hereof have been executed by all parties hereto.
11.5 Disclaimer of Relationship. Nothing contained in this Agreement, nor any act of the CITY or of the DEVELOPER, or of any other person, shall in and by itself be deemed or construed by any person to create any relationship of third-party beneficiary, or of principal and agent, of limited or general partnership, or of joint venture.
11.6 Discretionarv Governmental Actions. Certain planning, land use, zoning and other permits and public actions required in connection with the Project including, without limitation, the approval of this Agreement, the environmental review and analysis under CEQA or any other statute, and other transactions contemplated by this Agreement are discretionary government actions. Nothing in this Agreement obligates the CITY or any other governmental entity to grant final approval of any matter described herein. Such actions are legislative, quasi-judicial, or otherwise discretionary in nature. The CITY cannot and does not commit in advance that it will give final approval to any matter. The CITY shall not be liable, in contract, law or equity, to the DEVELOPER or any of its executors, administrators, transferees, successors-in-interest or assigns for any failure of any governmental entity to grant approval on any matter subject to discretionary approval.
11.7 Effective Date. This Agreement shall be effective upon the date first above written, upon the CITY and the DEVELOPER's complete execution following City Council approval and recordation of related documents.
11.8 Entire Aqreement. This Agreement represents the entire and integrated agreement of the parties with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, representations, or agreements, either written or oral. 29 11.9 Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement.
11.10 nses lncurred U E The DEVELOPER shall reimburse
the CITY for all reasonable expenses and costs of collection and enforcement, including reasonable attorney's fees, incurred by the CITY as a result of one or more Events of Default by the DEVELOPER under this Agreement.
11.11 Governinq Law and Venue. Except to the extent preempted by applicable federal law, the laws of the State of California shall govern all aspects of this Agreement, including execution, interpretation, performance, and enforcement. Venue for filing any action to enforce or interpret this Agreement will be Fresno, California.
11.12 Headinqs. The headings of the articles, sections, and paragraphs used in this Agreement are for convenience only and shall not be read or construed to affect the meaning or construction of any provision.
11.13 lnterpretation. This Agreement in its fully executed form is the result of the combined efforts of the parties. Any ambiguity will not be construed in favor or against either party, but rather by construing the terms in accordance with their generally accepted meaning.
11.14 No Assiqnment or Succession. The DEVELOPER shall not sell, transfer, assign or othenrvise dispose of all or a material part of any interest it might hold in the Property without the prior written consent of the CITY, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, upon prior written notice to the Clry the DEVELOPER shall be permitted to assign its rights and obligation under this Agreer"ni with respect to the Project and to the Partnership without the CITY's consent.
11.15 No Third-Partv Beneficiarv. No contractor, subcontractor, mechanic, materialman, laborer, vendor, or other person hired or retained by the DEVELOPER shall be, nor shall any of them be deemed to be, third-party beneficiaries of this Agreement, but each such person shall be deemed to have agreed: (a) that they shall look to the DEVFLOPER as their sole source of recovery if not paid, and (b) except as othenruise agreed to by the CITY and any such person in writing, they may not enter any claim or bring any such action against the CITY under any circumstances. Except as provided by law, or as othenryise agreed to in writing between the CITY and such person, each such person shall be deemed to have waived in writing all right to seek redress from the CITY under any circumstances whatsoever.
11.16 No Waiver. Neither failure nor delay on the part of the CITY in exercising any right under this Agreement shall operate as a waiver of such right, nor shall any single or partial exercise of any such right preclude any further exercise thereof or the exercise of any other right. No waiver of any provision of this Agreement or consent to any departure by the DEVELOPER therefrom shall be effective unless the same shall be in writing, signed on behalf of the Clry by a duly authorized officer thereof, and the same shall be effective only in the specific instance for which it is given. No notice to or demand on the DEVELOPER in any case shall entitle the DEVELOPER to any other or further notices or demands in similar or other circumstances or constitute a waiver of any of the CITY's right to take other or further action in any circumstances without notice or demand.
11.17 Nonreliance. The DEVELOPER hereby acknowledges having obtained such independent legal or other advice as it has deemed necessary and declares that in no 30 manner has it relied on the CITY, its agents, employees, or attorneys in entering into this Agreement.
11.18 Notice. Any notice to be given to either party underthe terms of this Agreement shall be given by certified United States mail, postage prepaid, return receipt requested, at the addresses specified below, or at such other addresses as may be specified in writing by the parties.
lf to the CITY: City of Fresno
Planning and Development Department
Housing Finance Division
2600 Fresno Street, Room 3065
Fresno, CA 9372'l-3605
lf to DEVELOPER: Housing Authority of the City of Fresno Attn: Executive Director
1331 Fulton Street
Fresno, CA 93721
11.19 Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement will control.
11.20 Recordinq of Documents. The DEVELOPER agrees to cooperate with the CITY and execute any documents required, promptly upon the CITY's request, and to promptly effectuate the recordation of this Agreement, the Declaration of Restrictions, the Deed of Trust, and any other documents/instruments that the CITY requires to be recorded, in the Official Records of Fresno County, California, consistent with this Agreement.
11.21 Remedies Cumulative. All powers and remedies given by this Agreement shall be cumulative and in addition to those othenruise provided by law.
11.22 Severabilitv. The invalidity, illegality, or un-enforceability of any one or more of the provisions of this Agreement shall not affect the validity, legality, or enforceability of the remaining provisions hereof or thereof.
ISTGNATURE PAGE TO FOLLOWI
31 CAN.IFORNIA ACKI{OWI.EDGMENT CIVIL CODE g XX89
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of Ca
County of '?da".{o
Jnn VArlv + ,b+On before me,
l,
Here lnsert Nome ond Title of the
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Ploce Notary Seol ond/or Stomp Above Signoture of Notary Public OPT!Oi'lA!-
Completing this informotion con deter qlterotion of the document or froudulent reottochment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages
Signe(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
Ei Corporate Officer - Title(s): E Corporate Officer - Title(s):
D4
tr Partner- n Limited tr General
tr lndividual tr Attorney in Fact
El Trustee c Guardian or Conservator
tr Partner - n Limited ft General
tr lndividual tr Attorney in Fact
El Trustee n Guardian or Conservator
tr Other: tr Other:
Signer is Representing: Signer is Representing
02019 National Notary Association
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ldrrt tublk - Cllfio.nh
Frat{ro County
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EXHIBIT "A''
PROPERTY DESCRIPTION
APN: 477-060-047
Thal part of Lot 16 of Fresno Colony, in the City of Fresno, County of Fresno, State of California, according to the map recofdAit in Book 2 Page 8 of plats, Fresno County Records, described as follows: Commencing ata point on the West line ol Lot 16 of Fresno Colony, 241.36 feet northerly frorn the Southwest cornor of said Lot 18;thence northerly along the West line of said Lot 16 a distance of 1055.4 leet, a little more or less, to ttre Northwest corner of said Lot 16; thence easterly along thee North line of said Lot 16, a distance of 327.22 feet, a litUe more or lsss, to a point which is 297.2leel westerly from the Northeast corner of sald Lot 16; lhence southerly along a line which passes through a point on the South line of said Lot 16, 299.35 feet westerly from the Southeast corner of said Lot 15, a distance of 1055.5 feet, a litlle more or less, to a point which is 241.36 feet northerly, at right angles, lrom the South line of sald Lot 16; thence westerly, a dlstance of 328.0 leet, a little more or less, to the point of commencemgnt.
APN:477460-04
EXHIBIT ..B''
PROJECT DESCRIPTION AND PERFORMANCE SCHEDULE
I. PROJECT DESCRIPTION
The East Florence Avenue and South Plumas Street Single-Family Housing Project (Project) consists of the acquisition of land, construction of 33 single-family housing units, interior, exterior, and on-site and off-site improvements. Of the total 33 units in the Project, 25 will be sold as owner-occupied Very Low- and Low-lncome housing to homebuyers earning 50% to 80% of area median income.
PLHA-FUNDED UNITS
% of Median
50% or less
80% or less
Totals
PLHA Funds will be made available by the Clry for payment of PLHA eligible soft and construction costs not to exceed Three Million Sixty-Two Thousand Six Hundred Eighty-Nine Dollars and 00/100 ($9,002,689.00), for 25 PLHA Units as determined by the CITY, as needed, for PLHA Project Eligible Costs.
PROJECT PERFORMANCE SCHEDULE
A. Submit Final Tract Map and Civil Plans: November 15,2023 B. Financial Closing: March 30, 2024
C. Start of Construction: April 15,2024
D. Completion of Construction/Sale Phase of the Project:
I nfrastructure Complete December 15,2024
Homes #1-5 March 15,2025
Homes #6-10 June 15,2025
Homes #11-15 September 15.2025
Homes #16-20 December 15,2025
Homes #21-25 March 15,2026
Homes #26-30 June 15,2026
Homes #31-33 September 15,2026
In the event Final Tract Map and Civil Plans have been timely submitted and the approval cannot be obtained by the date set forth herein, the milestones occurring on and after said dates shall be extended by the number of days equal to the duration of the delay.
Unit
3 22
25 EXHIBIT "C"
PROJECT BUDGET
Pro Forma Sources and Uses
*Alternate Source Fresno Housing
Sources of Funds Amount
Housing Successor to RDA $ 1,200,000.00
City of Fresno PLHA $ 3,062,688.71
CaIHOME $ 1,379,710.00
1st Mortqaqes/Homebuver Down Pavments $ 5,757.60L.29
FHLB Affordable Housinq Proqramx $ 150,000.00
Total Sources of Funds $ 11,550,000.00
Uses of Funds Amount
Land $ 0.00
Off-site i nfra structu re $ 524,925.00
On-site infrastructure $ 1,586,694.00
Unit Hard Costs $ 8,155,743.00
Soft Costs $ 800,000.00
Sale Closing Costs $ 359,358.00
Loan Interest $ 123,280.00
Total Uses of Funds $ 11,550,000.00
EXHIBIT "D''
EXEMPLAR DECLARATION OF RESTRICTIONS
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Planning and Development Dept.
Housing and Community Development Division
2600 Fresno Street, Room 3065
Fresno, CA 93721-3605
ACE ABOVE THIS LINE FOR RECORDER'S USE ONLY)
The document is exempt from the payment of a recording fee in accordance with Government Code Secllons 6103 and 27383.
APN: 477-060-047
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS (Declaration) is executed as of this day of _, 2024, by the Housing Authority of the City of Fresno, a California public body corporate and politic (DECLARANT), in favor of the CITY OF FRESNO, a California municipal corporation (C|TY).
WHEREAS, the DECLARANT is the owner of the real estate in the City of Fresno, County of Fresno, California, located at East Florence Avenue and South Plumas Street Fresno, CA 93700 (APN: 477-060-04T), which is more particularly described in EXH|B|T "All - Property Description, attached hereto and made a part hereof, including the improvements thereon (Property); and
WHEREAS, pursuant to a certain City of Fresno Permanent Local Housing Allocation Agreement dated _, 2024, incorporated herein by reference (PLHA Agreement) and instruments referenced therein, the DECLARANT agrees to utilize, the CITY agrees to provide, certain PLHA funds from the State of California (SB 2, Atkins), to the DECLARANT and the DECLARANT agrees to construct 25 PLHA Units reserved as Affordable Housing units available to Very Low- and Low-lncome households, subject to the terms and conditions set forth in the PLHA Agreement households earning 50% to 80% of the area median income for the Fresno Metropolitan Statistical Area (FMSA).
WHEREAS, the PLHA regulations promulgated by the State of California and the PLHA Guidelines and PLHA Agreement impose certain affordability requirements upon property owned by the DECLARANT, which affordability restrictions shall be enforceable for a 30-year period; and
WHEREAS, these restrictions are intended to bind the DECLARANT, and all purchasers of the Property and their successors.
NOW THEREFORE, the DECLARANT declares that the Property is held and will be held, transferred, encumbered, used, sold, conveyed, and occupied subject to the covenants, restrictions, and limitations set forth in this Declaration, all of which are declared and agreed to be in furtherance of the Project. All the restrictions, covenants and limitations will run with the land and will be binding on all parties having or acquiring any right, title or interest in the Property or any part thereof, will inure to the benefit of the CITY, and will be enforceable by it. Any purchaser under a contract of sale covering any right, title or interest in any part of the Property, by accepting a deed or a contract of sale or agreement of purchase, accepts the document subject to, and agrees to be bound by, any and all restrictions, covenant, and limitations set forth in this Declaration commencing on the date the DECLARANT has provided the CITY with a recorded Notice of Completion, constituting the commencement of the 30-year Affordability Period.
Declarations. The DECLARANT hereby declares that the Property is and shall be subject to the covenants and restrictions hereinafter set forth, all of which are declared to be in furtherance of the Project and the PLHA Agreement and are established and agreed upon for the purpose of enhancing and protecting the value of the Property and in consideration of the CITY entering into the PLHA Agreement with the DECLARANT.
2. Restrictions. The following covenants and restrictions on the use and enjoyment of the Property shall be in addition to any other covenants and restrictions affecting the Property, and all such covenants and restrictions are for the benefit and protection of the CITY and shall run with the Property and be binding on any future owners of the Property and inure to the benefit of and be enforceable by CITY. These covenants and restrictions are as follows:
a. The DECLARANT for itself and its successor(s) on title covenants and agrees that from the date the Project is complete, until the expiration of the Affordability Period, shall cause a minimum of 25 Affordable Housing Units to be used as owner-occupied affordable housing to Very Low- to Low-lncome Households with an income of 50% to 80%, or less, of area median income. The DECLARANT further agrees to file a recordable document setting forth the Project Completion Date when determined by the CITY. Unless othenruise provided in the Agreement, the term PLHA units shall include, without limitation, compliance with the following requirements:
i. Nondiscrimination. There shall be no discrimination against nor segregation of any persons or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or handicap in the sale, transfer, use, occupancy, tenure, or enjoyment of any of the Property, nor shallthe DECLARANT establish or permit any practice of discrimination or segregation with reference to the selection, location, number, use or occupancy of owners or vendees of the Project and/or Property. ii. Principal Residence. The PLHA Units upon the Project Property shall be sold only to eligible natural persons, who shall occupy the PLHA Units as their principal place of residence. The forgoing requirement that the tenant of unit occupy the unit as their principal residence does not apply to (i) persons, other than natural persons, who acquire the Project Property or portion thereof by foreclosure or deed in lieu of foreclosure; or State qualified entities that acquire the Property or portion thereof with the consent of the CITY.
iii. Household lncome Requirements. The 25 Affordable Hous tng Units constructed on the Project Property may be sold only to a natural person(s) whose annual Household income at the time of purchase property is not greater than 50% to 80% of the most recent annual median income as provided for on the State of California website for Fresno County and applicable to such household's size. 1 Item (a) above is hereinafter referred to as the Covenant and Restriction.
3. Enforcement of Restrictions. Without waiver or limitation, the CITY shall be entitled to injunctive or other equitable relief against any violation or attempted violation of any Covenant and Restriction.
4. Acceptance and Ratification. All present and future owners of the Property and other persons claiming by, through, or under them shall be subject to and shall comply with the Covenant and Restriction. The acceptance of a deed of conveyance to the Property shall constitute an agreement that the Covenant and Restriction, as may be amended or supplemented from time to time, are accepted and ratified by future owners, tenant or occupant, and such Covenant and Restriction shall be a covenant running with the land and shall bind any person having at any time any interest or estate in the Property, all as though such Covenant and Restriction was recited and stipulated at length in each and every deed, conveyance, mortgage or lease thereof.
Notwithstanding the foregoing, upon foreclosure by a lender or other transfer in lieu of foreclosure, the Affordability Period shall be terminated unless the foreclosure or other transfer in lieu of foreclosure or assignment recognizes any contractual or legal rights of public agencies, nonprofit sponsors, or others to take actions that would avoid the termination of low-income affordability. However, the requirements with respect to a PLHA Unit shall be revived according to their original terms, if during the original Affordability Period, the owner of record before the foreclosure or other transfer, or any entity that includes the former owner of those with whom the former owner has or had formally, family or business ties, obtains an ownership interest in the Project or the Property, the Affordability Period shall be revived according to its originalterms.
5. Benefit. This Declaration shall run with and bind the Property for a term commencing on the date the Notice of Completion is recorded and provided to the CITY, until the expiration of the 30-year Affordability Period. The failure or delay at any time of CITY and/or any other person entitled to enforce this Declaration shall in no event be deemed a waiver of the same, or of the right to enforce the same at any time or from time to time thereafter, or an estoppel against the enforcement thereof.
6. Costs and Attornev's Fees. In any proceeding arising because of failure of the DECLARANT or any future owner of the Property to comply with the Covenant and Restriction required by this Declaration, as may be amended from time to time, the CITY shall be entitled to recover its respective costs and reasonable attorney's fees incurred in connection with such default or failure.
7. Waiver. Neither the DECLARANT nor any future owner of the Property may exempt itself from liability for failure to comply with the Covenant and Restriction required in this Declaration; provided however, that upon the transfer of the Property, the transferring owner may be released from liability hereunder, upon the CITY's written consent of such transfer, which consent shall not be unreasonably withheld, conditioned, or delayed.
8. Severabilitv. The invalidity of the Covenant and Restriction or any other covenant, restriction, condition, limitation, or other provision of this Declaration shall not impair or affect in any manner the validity, enforceability, or effect of the rest of this Declaration and each shall be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference to the masculine, feminine, or neuter gender herein shall, unless the context clearly requires the contrary, be deemed to refer to and include all genders. Words in the singular shall include and refer to the plural, and vice versa, as appropriate.
10. lnterpretation. The captions and titles of the various articles, sections, subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for ease and convenience of reference only and shall not be used as an aid in interpreting or construing this Declaration or any provision hereof.
11. Amendments or Modifications. No amendments or modifications shall be permitted without the prior written consent of the Clry and the DECLARANT.
12. Recordation. The DECLARANT acknowledges that this Declaration will be filed at the County of Fresno Recorder's Office, State of California.
13. Capitalized Terms. All capitalized terms used in this Declaration, unless othenryise defined herein, shall have the meanings assigned to such terms in the PLHA Agreement.
14. Headinqs. The headings of the articles, sections, and paragraphs used in this Declaration are for convenience only and shall not be read or construed to affect the meaning or construction of any provision.
il
lN WITNESS WHEREOF, DECLARANT has executed this Declaration of Restrictions on the date first written above.
DECLARANT:
HOUSING AUTHORITY OF THE CIry OF FRESNO,
a California public body corporate and politic
By:
Nam
Title:
Date:
Williams
chief Exeerfive cer
(Attach notary cate of acknowledgment)
U?r4
cAt-lFoRF{[A ACKi{OWI-EDGMFNT CIVII CODE g 1X89
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of
County D
on Jrnrnr\a*,A t .?o4 berore me,
6*"''
R
Here lnsert Nome ond Title of the Officer
personally appeared llr /tA
NamelST'of Signe({
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Ploce Notory Seal ond/or Stomp Above of Notory Public
oPTtoD.tAt-
Completing this informotion con deter olterotion of the document or froudulent reottochment of this form to on unintended document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Paoes:
Signe(s) Other Than Named Above:
Capacity(ies) Clairned by Signer(s)
Signer's Name: Signer's Name:
tr Corporate Officer - Title(s) E Corporate Officer - Title(s):
tr Partner- n Limited D General
tr lndividual El Attorney in Fact
tr Trustee n Guardian or Conservator
tr Partner - r Limited El General
tr lndividual tr Attorney in Fact
tr Trustee n Guardian or Conservator
tr Other: n Other:
Signer is Representing: Signer is Representing
02019 National Notary Association
Co6n. Erplr.r llr 23, 2027
HYASHA AIIDETTOII
Notrry Publk ' Crlfiornl.
Fr6m Conty
Connlrrlon 12,!l2ll7
EXHIBIT ..A"
Legal Description
To Declaration of Restrictions
That part of Lot 16 of Fresno Colony, in the City ol Fresno, County of Fresno, State of California, according lo the map r€cord6iJ in Book 2 Paga 8 of plats, Fresno County Records, described as follows: Commencing at a poinl on the West line ol Lot 16 of Fresno Colony, 241.36 feet northerly frorn the Southwest cornor of said Lol 16;thence northerly along the West line of said Lot 16 a dlstance of 1055.4 leet, a little more or less, to the Northwest corner of said Lot 16; thence easterly along thee North line of said Lot 16, a distance of 327.22 feet, a litte more or less, to a'point whlch is 297.2 teel westerly lrom the Northeast corner ol sald Lot 16;thence southerly along a line which passes through a point on the South line of said Lot 16, 299.35 feet westerly from the Southeast corner of saH Lot 16, a distance ol 1055.5 feet, a little more or less, to a point which is 241.36 feet northerly, at right angles, lrom the South llne of sald Lot l6; thonce westerly, a dlstance of 328.0 feet, a little more or less, to the point of commsncement.
APN:42l-060-04
3387578v1 / 18621.0001
EXHIBIT "E' - PROMISSORY NOTE
DO NOT DESTROY THIS NOTE: When paid, this note, must be surrendered to Borrower for Cancellation.
PROMISSORY NOTE
Secured by Deed of Trust
Loan Amount: $3,062,689 Date:
Fresno, California
Promise to Pay. For value received, the undersigned, Housing Authority of the City of Fresno, a California body corporate and politic (BORROWER), promises to pay to the order of the City of Fresno, a California municipal corporation, (Lender), the sum of Three Million Sixty-Two Thousand Six Hundred Eighty-Nine dollars and 00/100 ($e,002,689.00), along with interest on the unpaid principal at the rate of 3o/o per annum, all due and payable on or before (the Borrower Loan Maturity Date) in accordance with the parties' Permanent Local Housing Allocation Agreement dated , (PLHA Agreement), on which date the unpaid principal balance together with interest and unpaid penalties or late charges where applicable thereon shall be due and payable, along with attorney's fees and costs of collection, and without relief from valuation and appraisement laws, provided that, in the event the Borrower is not then in default of the PLHA Agreement, the Borrower may at any time prior to the Borrower Loan Maturity Date convey the 25 completed single-family PLHA Units securing the Note to a Very Low- to Low-lncome homebuyerthrough a purchase escrow (Escrow) that conforms to the PLHA Agreement and concurrent therewith assigns Note to said homebuyers who shall enter into a separate Note with the CITY at 0o/o interest with a lump sum principal only due and payable from the Very Low- to Low-lncome homebuyer, on or before the expiration of 30 years from the close of escrow (Loan Maturity Date). Any failure to make a payment required hereunder shall constitute a default under this Note.
Definitions. All capitalized terms used in this Note, unless othenruise defined, will have the respective meanings specified in the PLHA Agreement. In addition, as used in this Note, the following terms will have the following meanings:
Assiqnment bv Lender. The Lender may transfer this Note and deliver to the transferee all or any part of the Property then held by it as security under this Note, and the transferee will then become vested with all the powers and rights given to Lender; and Lender will then be forever relieved from any liability or responsibility in the matter, but Lender will retain all rights and powers given by this Note with respect to Property not transferred.
Business Dav. Means any day other than Saturday, Sunday, or public holiday or the equivalent for banks generally under the laws of California. Whenever any payment to be made under this Note is stated to be due on a day other than a Business Day, that payment may be made on the next succeeding Business Day.
Enforceabilitv. lf any one or more of the provisions in this Note is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired. This Note will be binding on and inure to the benefit of Borrower, Lender, and their respective successors and assigns.
Governinq Law. The Borrower agrees that this Note will be deemed to have been made under and will 3387578v1 / 18621.0001
be governed by the laws of California in all respects, including matters of construction, validity, and performance, and that none of its terms or provisions may be waived, altered, modified, or amended except as the Lender may consent to in a writing duly signed by the Lender or its authorized agents.
Note Maturitv Date. Means 30 years from the Note date
Securitv. This Note, and any extensions or renewals hereof, is secured by a Deed of Trust, Security Agreement executed by the Borrower and recorded against the Property in Fresno County, California, as Document No. ofl _, 2024, that provides for acceleration upon stated events, and executed in favor of the Lender (Deed of Trust), creating and insured as a not worse than 3rd position lien on the Property, subordinated only to a lien created by Borrower to insure payment of monies borrowed to pay for the construction of 33 Units on the Property. Said Deed of Trust shall be subject to the terms of the Homebuyer Written Agreement, and such shall automatically be incorporated in the terms of the Deed of Trust that secures this Note. Said Deed of Trust is insured by CLTA Lender's policy in the principal amount of and endorsed for this Note.
Time is of the Essence. lt will be a default under this Note if the Borrower defaults under the PLHA Agreement. No delay or omission of the Lender in exercising any right or power arising in connection with any default will be construed as a waiver or as acquiescence, nor will any single or partial exercise preclude any further exercise. The Lender may waive any of the conditions in this Note and no waiver will be deemed to be a waiver of the Lendeds rights under this Note, but rather will be deemed to have been made in pursuance of this Note and not in modification. No waiver of any default will be construed to be a waiver of or acquiescence in or consent to any preceding or subsequent default.
Terms of Securitv lnstruments. The Deed of Trust securing this note provides as follows DUE ON SALE-CONSENT BY BENEFICIARY. The Beneficiary may, at its option, declare immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer of all or any portion of the Property, or any interest therein, other than a sale to a Very Low to Low-lncome homebuyer as provided in the PLHA Agreement, without the Beneficiary's prior consent. A "sale or transfed' means the conveyance of the Property or any right, title or interest therein; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Property, or by any other method of conveyance of land interest. lf any Trustor is a corporation, partnership or limited liability, company, transfer also includes any change in ownership of more than twenty-five percent of the voting stock, partnership interests or limited liability company interests, as the case may be, of Trustor. However, this option shall not be exercised by the Beneficiary if such exercise is prohibited by applicable law.
il
3387578v1 / 18621.0001
By:
Na
lN WITNESS WHEREOF, the BORROWER has caused this Promissory Note to be executed as of the date and year first above written.
HOUSING AUTHORITY OF THE CITY OF FRESNO,
a California public body corporate and politic
Date: I 20
will
Title Executive Officer
(Attach notary certiflcate of acknowledgment)
3387578v'l / 18621.0001
CA[-! FORfi{IA ACKNOW0-EDGIi,I ENT ctvtt- coDE 5 x189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of Ca,Y'W
StrtoCounty of
On before me,
A
Here lnseft Name ond Title of the
personally appeared
Nomet2fof Sign
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
l\/-Signature
Ploce Notory Seol qnd/or Stomp Above Signoture of Notory Public oPnIot{A!-
Completing this informotion con deter olteration of the document or fraudulent reottochment of this form to an unintended document.
Description of Attached Docurnent
Title or Type of Document:
Document Date: Number of Paoes:
Signe(s) Other Than Named Above:
Capacity(ies) ClaEmed by Signen(s)
Signer's Name: Signer's Name:
tr Corporate Officer - Title(s): El Corporate Officer - Title(s) tr Partner- n Limited tr General
tr lndividual tr Attorney in Fact
tr Trustee n Guardian or Conservator
E Paftner- n Limited tr General
tr lndividual tr Attorney in Fact
El Trustee n Guardian or Conservator
tr Other: n Other:
Signer is Representing: Signer is Representing:
02019 National Notary Association
EXHIBIT "F" . EXEMPLAR DEED OF TRUST
Recorded at the Request of
and When Recorded Return to
City of Fresno
Planning and Development Department
Housing and Community Development Division
2600 Fresno Street, Room 3065
Fresno, CA 93721-3605
TH LINE FOR RECORDER'S USE ONLY)
TITLE ORDER ESCROW NO._
A.P.N.: 477-060-04 T
DEED OF TRUST
THIS DEED OF TRUST (Deed of Trust) made this _dayof _,2024, by and between the Housing Authority of the City of Fresno, a California public body corporate and politic ("Borrowe/'), Title Company, a California Corporation ("Trustee"), and the City of Fresno, a Municipal Corporation organized and existing under the laws of the State of California whose address is 2600 Fresno Street, Fresno, California 93721("Beneficiary" and "Lended').
The Borrower, in consideration of the indebtedness herein recited and the trust herein created, does irrevocably grant and convey to Trustee, in trust, with power of sale, all the Borrower's right, title, and interest now owned or hereafter acquired in the real property ("Land") known as East Florence Avenue and South Plumas Street, Fresno, CA 93706 (APN: 477-060-04T), located in Fresno County, California and more particularly described in the Attached EXHIBIT "A", incorporated by reference (the Borrower agrees that any greater to the Land later acquired during the term of this Deed of Trust will be subject to this Deed of Trust), together with the rents, issues, and profits, subject however, to the right, power, and authority granted and conferred on the Borrower in this Deed of Trust to collect and apply the rents, issues, and profits; and
The Borrower also irrevocably grants, transfers, and assigns to the Trustee, in trust, with power of sale, all of the Borrower's right, title and interest now owned or later for and located at the Property:
(1) All buildings ("Buildings") and improvements now or later on the land and all easements, rights, appurtenances, water and water rights, minerals and mineral rights; all machinery, equipment, appliances, and fixtures for the generation or distribution of air, water, heat, electricity, light, fuel, or refrigeration or for ventilating or sanitary purposes or for the exclusion of vermin or insects or for the removal of dust, refuse, or garbage; all wall safes, built-in furniture, and installations, window shades and blinds, light fixtures, fire hoses and brackets, screens, linoleum, carpets, furniture, furnishings, fixtures, plumbing, laundry tubs and trays, refrigerators, heating units, stoves, water heaters, incinerators, and communication systems and installations for which any Building is specially designed; all of these item, whether now or later installed, being declared to be for all purposes of this Deed of Trust a part of the Land, the specific enumerations in this Deed of Trust not excluding the general; and
The rents, issues, profits, and proceeds relating to the foregoing; and The Property to the extent not included on clauses (1) and (2) above. (2)
(3)
3387578v1 / 18621.0001
TO SECURE, in order of priority that the Beneficiary determines:
(1) Payment of the indebtedness evidenced by a note of the Borrower of even date with this Deed of Trust in the principal amount of Three Million Sixty-Two Thousand Six Hundred Eighty-Nine Dollars and 00/100 ($9,002,689.00), (Note), payable to the Beneficiary or order, and all extensions, modifications, or renewals of that note; (2) Payment of the interest on that indebtedness according to the terms of the Note; (3) Payment of all other sums (with interest as provided herein) becoming due and payable to the Beneficiary or the Trustee pursuant to the terms of this Deed of Trust; (4) Performance of every obligation contained in this Deed of Trust, the Note, the PLHA Agreement dated the _ of _,2024, and its related documents, the Declaration of Restrictions dated the _ of _, 2024, any instrument now or later evidencing or securing any indebtedness secured by this Deed of Trust, and any agreements, supplemental agreements, or other instruments of security executed by Borrower as of the same date of this Deed of Trust or at any time subsequent to the date of this Deed of Trust for the purpose of further securing any indebtedness amending this Deed of Trust or any instrument secured by this Deed of Trust (collectively the Loan Documents); and (5) Payment of all other obligations owed by Borrower to Beneficiary that by their terms recite that they are secured by this Deed of Trust, including those incurred as primary obligor or as guarantor.
The Borrower covenants that the Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Property, and that the Property is unencumbered except for encumbrances of record. The Borrower covenants that the Borrower will forever warrant and will defend the grant made in this Deed of Trust against all claims and demands, subject to encumbrances of record. The Borrower covenants that the Borrower will maintain and preserve the lien of this Deed of Trust until all the indebtedness under the Note is paid in full.
The Borrower represents and warrants to the Beneficiary that as of the date of this Deed of Trust, the Borrower is a validly existing and is in good standing under the laws of the State of California and is qualified to do business in the State of California; that the Borrower has the requisite power and authority to own, develop, and operate the property; and that the Borrower is in compliance with all laws, regulations, ordinances, and orders of public authorities applicable to it.
The Borrower represents and warrants to the Beneficiary that as of the date of this Deed of Trust the execution, delivery, and performance by the Borrower and the borrowings evidenced by the Note are within the power of the Borrower; have been duly authorized by all requisite corporate or partnership actions, as appropriate; has received all necessary governmental approvals; and will not violate any provision of law, any order of any court or agency of government, the charter documents of the Borrower, or any indenture, agreement, or any other instrument to which the Borrower is a party or by which the Borrower or any of it property is bound, nor will they conflict with, result in a breach of, or constitute (with due notice and lapse of time) a default under any indenture, agreement, or other instrument, or result in the creation or imposition of any lien, charge, or encumbrance of any nature on any of the property or assets of the Borrower, except as contemplated by the provisions of the Loan 3387578v1 / 18621.0001
Documents; and each of the Loan Documents, when executed and delivered to the Beneficiary, will constitute a valid obligation, enforceable in accordance with its terms.
The Borrower represents and warrants to the Beneficiary that as of the date of this Deed of Trust that the Property is not used principally for agricultural or grazing purposes; that the Borrower is engaged in the development and operation of lmprovements to the Property; and that the principal purpose of the PLHA Loan is the construction of affordable housing and improvements to the Property.
UNIFORM COVENANTS. The Borrower and the Lender covenant and agree as follows:
1. Pavment of Principal. The Borrower shall promptly pay when due the principal indebtedness evidenced by the Note. The Lender shall reuse repayments consistent with Section 301 of the PLHA guidelines.
2. Hazard Insurance. The Borrower, at its sole cost and expense, for the mutual benefit of the Borrower and Beneficiary, shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage", and such other hazards as the Lender may require and in such amounts and for such periods as the Lender may require as set forth in the PLHA Agreement referenced above. The insurance carrier providing the insurance shall be chosen by the Borrower subject to approval by the Lender; provided that such approval shall not be unreasonably withheld. All insurance policies and renewals thereof shall be in a form acceptable to the Lender and shall include a standard mortgage clause in favor of and in a form acceptable to the Lender. The Lender shall have the right to hold the policies and renewals thereof, subject to the terms of any mortgage, deed of trust or other security agreement with a lien which has priority over this Deed of Trust. ln the event of loss, the Borrower shall give prompt notice to the insurance carrier and the Lender. The Lender may make proof of loss if not made promptly by the Borrower. lf the Property is abandoned by the Borrower, or if the Borrower fails to respond to the Lender within 30 days from the date notice is mailed by the Lender to the Borrower that the insurance carrier offers to settle a claim for insurance benefits, the Lender is authorized to collect and apply the insurance proceeds at the Lender's option either to restoration or repair of the Property or to the sums secured by this Deed of Trust.
3. Preservation and Maintenance of Propertv. Leaseholds: Condominiums: Planned Unit Developments. The Borrower shall kee p the Property in good repair and shall not commit waste or permit impairment or deterioration of the Property and shall comply with the provisions of anyleaseifthisDeed of Trust is on a leasehold. lf this Deed of Trust is on a unit in a condominium or a planned unit development, the Borrower shall perform all the Borrower's obligations under the declaration or covenants creating or governing the condominium or planned unit development, the by-laws and regulations of the condominium or planned unit development, and constituent documents.
Protection of Lender's Securitv. lf the Borrower fails to perform the covenants and agreements contained in this Deed of Trust, or if any action or proceeding is commenced which materially affects the Lender's interest in the Property, then the Lender, at the Lender's option, upon notice to the Borrower, may make such appearances, disburse such sums, including reasonable attorney's fees, and take such action as is necessary to protect the Lender's interest. lf the Lender requires mortgage insurance as a condition of making the loan secured by this Deed of Trust, Borrower shall pay the premiums required to maintain such insurance in effect until such time as the requirement for such insurance terminates in accordance with the Borrower's and Lende/s written agreement or applicable laws. Any amounts disbursed by the Lender pursuant to this Paragraph 4 shall become additional indebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower and Lender agree to other terms of payment, such 4 3387578v1 / 18621.0001
6 7
amounts shall be payable upon notice from the Lender to the Borrower requesting payment thereof. Nothing contained in this paragraph 4 shall require the Lender to incur any expense or take any action hereunder.
5. lnspection. The Lender may make or cause to be made reasonable entries upon and inspections of the Property, provided that the Lender shall provide the Borrower notice prior to any such inspection specifying reasonable cause therefore related to the Lender's interest in the Property.
Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to the Lender, subject to the terms of any mortgage, deed of trust or other security agreement with a lien which has priority over this Deed of Trust.
Borrower Not Released: Forbearance Bv Lender Not a Waiver. The extension of the time for payment or modification of amortization of the sums secured by this Deed of Trust granted by the Lender to any successor in interest of the Borrower shall not operate to release, in any manner, the liability of the original Borrower and the Borrower's successors in interest. The Lender shall not be required to commence proceedings against such successor or refuse to extend time for payment or othenruise modify amortization of the sums secured by this Deed of Trust be reason of any demand made by the original Borrower and the Borrower's successors in interest. Any forbearance by the Lender in exercising any right or remedy hereunder, or othenryise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right of remedy.
8. Successors and Assiqnees Bound: int and Several Liabilitv: Co-Sioners. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to the respective successors and assignees of the Lender and the Borrower. All covenants and agreements of the Borrower shall be joint and several. Any borrower who co-signs this Deed of Trust, but does not execute the Note is: (a) co-signing this Deed of Trust only to grant and convey that the Borrower's interest in the Property of Trustee under the terms of this Deed of Trust, and (b) not personally liable on the Note or under this Deed of Trust or the Note, without that Borrower's consent and without releasing that Borrower or modifying this Deed of Trust as to that Borrower's interest in the Property.
Transferabilitv. One of the inducements to the Beneficiary for making the Loan is the identity of the Borrower. The existence of any interest in the Property other than the interests of the Borrower and Beneficiary and any encumbrance permitted in this Deed of Trust, even though subordinate to the security interest of the Beneficiary, and the existence of any interest in the Borrower other than those of the present owners, would impair the Property and the security interest of the Beneficiary, and, therefore, except as provided herein or in the Loan Documents, the Borrower will not sell, convey, assign, transfer, alienate, or otherwise dispose of its interest in the Property, either voluntarily or by operation of law, or agree to do so, without the prior written consent of the Beneficiary. The consent to one transaction by the Beneficiary will not be deemed a waiver of the right to require consent to further or successive transactions. lf the Borrower is a corporation, any sale, transfer, or disposition of 50 percent or more of the voting interest of the Borrower or of any entity that directly or indirectly owns or controls the Borrower, including, without limitation, the parent company of the Borrower, and the parent company of the parent company of the Borrower, will constitute a sale of the Property for purposes of this article. lf the Borrower is a partnership any change or addition of a general partner of the Borrower, change of a partnership interest of the Borrower with the exception of a limited partner transfer, which shall not require the Beneficiary's consent, or sale, transfer, or disposition of 50 percent or more of the voting interest or partnership interest of any general partner of the Borrower or of I
3387578v1 / 18621.0001
10 any corporation, partnership or entity that directly or indirectly owns or controls any general partner of the Borrower, including, without limitation, each parent company of a general partner of the Borrower and each parent company of any parent company of a general partner of the Borrower, will constitute a sale of the Property for purposes of this section. lf the Borrower is a limited liability company, any change of the manager or any sale, transfer or disposition of 50 percent or more of the partnership interests of the Borrower, or disposition of 50 percent or more of the voting interest of the Borrower or of any corporation, partnership or entity that directly or indirectly owns or controls any member of the Borrower, including without limitations, each parent company of the Borrower and each parent company of any parent company of a member of the Borrower, will constitute a sale of the Property for purposes of this section. Any transaction in violation of this section will cause all lndebtedness, irrespective of the maturity dates, at the option of the Beneficiary and without demand or notice, immediately to become due, together with any prepayment premium in accordance with the terms of the Note except as prohibited by law.
Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to the Borrower provided for in this Deed of Trust shall be given by delivering it or by mailing such notice by certified mail addressed to the Borrower at the Property Address or at such other address as the Borrower may designate by notice to the Lender as provided herein, and (b) any notice to the lender shall be given by certified mail to the Lender's address stated herein or to such other address as the Lender may designate by notice to the Borrower as provided herein. Any notice provided for in this Deed of Trust shall be deemed to have been given to the Borrower or Lender when given in the manner designated herein. 11 Govern tno Law: Severabilitv The state and local laws applicable to this Deed of Trust shall be 12 the laws of the jurisdiction in which the Property is located. The foregoing sentence shall not limit the applicability of Federal law to this Deed of Trust or if the Note conflicts with applicable law, such conflict shall not affect other provisions of this Deed of Trust or the Note which can be given effect without the conflicting provision, and to this end the provisions of this Deed of Trust and the Note are declared to be severable. As used herein, "costs", "expenses", and "attorney's fees" include all sums to the extent not prohibited by applicable law or limited herein.
Borrower's Copv. The Borrower shall be furnished a copy of the Note and a conformed copy of the recorded Deed of Trust at the time of execution or after recordation thereof.
Acceleration: Remedies. Upon the Borrower's breach of any covenant or agreement of the Borrower in this Deed of Trust, including the covenants to pay when due any sums secured by this Deed of Trust, the Note or the PLHA Program restrictions, the Lender prior to acceleration shall give notice to the Borrower as provided in paragraph 10 hereof specifying: (1) the breach; (2) the action required to cure such breach; (3) a date, not less than 10 days from the date notice is mailed to the Borrower, by which such breach must be cured or 30 days for a non-monetary default; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Property. The notice shall further inform the Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of the Borrower to acceleration and sale. lf the breach is not cured on or before the date specified in the notice, the Lender, at the Lender's option may declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by applicable law. The Lender shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph 13, including, but not limited to, reasonable attorney's fees. lf the Lender invokes the power of 13 3387578v1 / 18621.0001
sale, the Lender shall execute or cause the Trustee to execute a written notice of the occurrence of an event of default and of the Lender's election to cause the Property to be sold and shall cause such notice to be recorded in each county in which the Property or some part thereof is located. The Lender or the Trustee shall mail copies of such notice in the manner prescribed by applicable law. The Trustee shall give public notice of sale to the persons and in the manner prescribed by applicable law. After the lapse of such time as may be required by applicable law, the Trustee, without demand on the Borrower, shall sell the Property at public auction to the highest bidder at the time and place and under the terms designated in the notice of sale in one or more parcels and in such order as Trustee may determine. The Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and place of any previously scheduled sale. The Lender or the Lender's designee may purchase the Property at any sale. The Trustee shall deliver to the purchaser the Trustee's deed conveying the Property so sold without any covenant or warranty, expressed or implied. The recitals in the Trustee's deed shall be prima facie evidence of the truth of the statements made therein. The Trustee shall apply the proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the sale, including, but not limited to, reasonable Trustee's and attorney's fees and costs of title evidence; (b) to all sums secured by this Deed of Trust; and (c) the excess, if any, to the person, persons, or entities legally entitled thereto.
14. Borrower's Rioht to Reinstate. Notwithstandi ng the Lender's acceleration of the sums secured
15. by this Deed of Trust due to the Borrower's breach, the Borrower shall have the right to have any proceedings begun by the Lender to enforce this Deed of Trust discontinued at any time prior to five days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays the Lender all sums which would be then due under this Deed of Trust and the Note had no acceleration occurred; (b) the Borrower cures all breaches of any other covenants or agreements of Borrower contained in this Deed of Trust; (c) the Borrower pays all reasonable expenses incurred by the Lender and Trustee in enforcing the covenants and agreements of Borrower in paragraph 13 hereof, including but not limited to, reasonable attorney's fees; and (d) the Borrower takes such action as the Lender may reasonably require to assure that the lien of this Deed of Trust, Lender's interest in the Property and the Borrower's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by the Borrower, this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred.
Nonrecourse. The Bonower, its officers, commissioners, employees, or agents, shall not have any personal liability for repayment of the loan. The sole recourse of the Lender under the Loan Documents for repayment of the Note shall be the exercise of its rights against the Property.
Withdrawal. Removal and/or Replacement. Unless otherwise provided herein, withdrawal of the General partner of the Borrower pursuant to the terms of a partnership agreement due to violation by a general partner of the terms of a partnership agreement, or a voluntary withdrawal from a partnership by a general partner, and any transfer of limited partnership interest or interests in the same, shall not constitute a default under any of the Loan Documents, and any such actions shall not accelerate the maturity of the loan.
Lien of Deed of Trust. The Beneficiary agrees that the lien of this Deed of Trust shall be subordinated to any senior lender housing commitment (as such term is defined in Section (42(hXOXB) of the internal Revenue Code) (the "Extended Use Agreement") recorded against the Property, provided that such Extended Use Agreement, by its terms, must terminate upon foreclosure under this Deed of Trust or upon a transfer of the Property by instrument of lieu of foreclosure, in accordance with Section 42(hXOXE) of the lnternal Revenue Code.
16. 17.
3387578v1 / 18621.0001
18 19.
20. 21.
22 Appointment of Receiver: Lender in Possession. As additional security hereunder, the Borrower hereby assigns to the Lender the Property, provided that the Borrower shall, prior to acceleration under paragraph 13 or abandonment of the Property, have the right to collect and retain such Propefty. Upon acceleration under paragraph 13 hereunder or abandonment of the Property, the Lender, in person, by agent or by judicially appointed receiver shall be entitled to enter upon, take possession of and manage the Property and to collect of monies of the Property including those past due. All monies collected by the Lender or the receiver shall be applied first to premiums on receiver's reasonable attorney's fees, and then to the sums secured by this Deed of Trust. The Lender and the receiver shall be liable to account only for those monies actually received.
Release of Deed and Note. Upon payment of all sums secured by this Deed of Trust, the Lender shall request the Trustee to reconvey the Property and shall surrender this Deed of Trust, and all notes evidencing indebtedness secured by this Deed of Trust to Trustee. The Trustee shall reconvey the Property without warranty and without charge to the person or persons legally entitled thereto. Such person or persons shall pay all costs of recordation, if any.
Substitute Trustee. At the Lender's option, the Lender may from time to time, appoint a successor trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by the Lender and recorded in the Fresno County Recorder's Office. The instrument shall contain the name of the original the Lender, Trustee and Borrower, the book and page where this Instrument is recorded and the name and address of the successor trustee.
The successor trustee shall, without conveyance of the Property, succeed to all the title, powers and duties conferred upon the Trustee herein and by applicable law. This procedure for substitution of trustee shall govern to the exclusion of all other provisions for substitution.
Statement of Obliqation. The Lender may collect a fee not to exceed Fifty Dollars and 111100 ($50.00) for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of California.
Event of Default. Prior to declaring or taking any remedy permitted under Loan Documents, (where applicable) the Borrower's limited partners shall have an additional period of not less than 30 days to cure such alleged default. Notwithstanding the foregoing, in the case of a default that cannot with reasonable diligence be remedied or cured within 30 days, the Borroweds limited partners shall have such additionaltime as reasonably necessary to remedy or cure such default, but in no event more than 90 days from the expiration of the initial 30 day period above, and if the Borrower's limited partners reasonably believe that in order to cure such default, the Borrower's limited partners must remove one or both of the Borrower's general partners in order to cure such default, the Borrower's limited partners shall have an additional 30 days following the effective date of such removal to cure such default. To the extent that there is a conflict between this paragraph 22 and any remedy permitted by the PLHA Agreement, Loan Documents, or Loan, the terms of this paragraph 22 shall control.
The following events are each an "Event of Default":
(a) Default in the payment of any sum of principal or interest when due under the Note or any other sum due under the Loan Documents.
(b) Failure to maintain insurance as provided in Section 2 hereof. (c) The failure (without cure during the applicable period, if any, for cure) of any the Borrower to observe, perform, or discharge any obligation, term, covenant, or condition of any of 3387578v1 / 18621.0001
the Loan Documents, any agreement relating to the Property, or any agreement or instrument between any Loan Party and the Beneficiary.
(d) The assignment by the Borrower, as lessor or sublessor, as the case may be, of the rents or the income of the Property or any part of it (other than to Beneficiary) without first obtaining the written consent of the Beneficiary.
(e) The following events:
(i) the filing of any claim or lien against the Property or any party of it, whether or not the lien is prior to this Deed of Trust, and the continued maintenance of the claim or lien for a period of 30 days without discharge, satisfaction, or adequate bonding in accordance with the terms of this Deed of Trust;
(ii) the existence of any interest in the Property other than those of the Borrower, Beneficiary, any tenants of the Borrower, and any one listed in a title exception approved by the Beneficiary in writing; or
(iii) the sale, hypothecation, conveyance, or other disposition of the Property except with the express written approval of the Beneficiary, any of which will be an Event of Default because the Borrower's obligation to own and operate the Property is one of the inducements to the Beneficiary to make the Loan; (0 Default under any agreement to which the Borrower is a party, which agreement relates to the borrowing of money by the Borrower from Beneficiary. (g) Any presentation or warranty made by any Loan Party or any other Person under this Deed of Trust or in, under, or pursuant to the Loan Documents, is false or misleading in any material respect as of the date on which the representation or warranty was made. (h) Any of the Loan Documents, at any time after their respective execution and delivery and for any reason, cease to be in full force or are declared null and void, or the validity or enforceability is contested by the Borrower or any stockholder or partner of the Borrower, or the Borrower denies that it has any or further liability or obligation under any of the Loan Documents to which it is a party. lf one or more Event of Default occurs and is continuing, then the Beneficiary may declare all the lndebtedness to be due and the lndebtedness will become due without any further presentment, demand, protest, or notice of any kind, and the Beneficiary may:
(i) in person, by agent, or by a receiver, and without regard to the adequacy of security, the solvency of the Borrower, orthe existence of waste, enter on and take possession of the Property or any party of it in its own name or in the name of Trustee, sue for or othenryise collect the rents, issues, and profits, and apply them, less costs and expenses of operation and collection, including reasonable attorneys' fees, upon the lndebtedness, all in any order that the Beneficiary many determine. The entering on and taking possession of the Property, the collection of rents, issues, and profits, and the application of them will not cure or waive any default or notice of default or invalidate any act done pursuant to the notice; (ii) commence an action to foreclose this Deed of Trust in the manner provided by law for the foreclosure of mortgages of real property;
(iii) deliver to the Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause the Property to be sold, which notice the Trustee or the Beneficiary will cause to be filed for record; 3387578v'l / 18621.0001
(iv) with respect to any personal property, proceed as to both the real and personal property in accordance with the Beneficiary's rights and remedies in respect of the Land, or proceed to sellthe personal property separately and without regard to the Land in accordance with the Beneficiary's rights and remedies; or (v) exercise any of these remedies in combination or any other remedy at law or in equity.
24. Protection of Securitv. lf an Event of Default occurs and is continuing, the Beneficiary or Trustee, without notice to or demand upon the Borrower, and without releasing the Borrower from any obligations or defaults may:
(a) enter on the Property in any manner and to any extent that either deems necessary to protect the security of this Deed of Trust;
(b) appear in and defend any action or proceeding purporting to affect, in any manner, the Obligations or the lndebtedness, the security of this Deed of Trust, or the rights or powers of Beneficiary or Trustee;
(c) pay, purchase, or compromise any encumbrance, charge, or lien that in the judgment of Beneficiary or Trustee is prior or senior to this deed of Trust; and (d) pay expenses relating to the Property and its sale, employ counsel, and pay reasonable attorneys'fees.
The Borrower agrees to repay on demand all sums expended by the Trustee or the Beneficiary pursuant to this section with interest at the Note Rate of lnterest, and those sums, with interest, will be secured by this Deed of Trust.
25. Effect of Assignment. The assignment of rents as provided herein will not impose on the Beneficiary any duty to produce rents, issues, or profits from the Property, or cause the Beneficiary to be:
(a) a "mortgage-in-possession" for any purpose;
(b) responsible for performing any of the obligations of the lessor under any of the Leases; or
(c) responsible for any waste committed by lessees or any other parties, any dangerous or defective condition of the Property, or any negligence in the management, upkeep, repair, or control of the Property.
The Beneficiary will not be liable to the Borrower as a consequence of the exercise of the rights granted to the Beneficiary under this assignment or the failure of the Beneficiary to perform any obligation of the Borrower arising under Leases.
il
3387578v1 / 18621.0001
lN WITNESS WHEREOF, Borrower has executed this Deed of Trust on the day and year set forth above. By signing below, Borrower agrees to the terms and conditions as set forth above.
BORROWER
HOUSING AUTHORIry OF THE CIry OF FRESNO,
a California publ v nd politic
'ln1/By: Date
Name
Title:
e wiil m
(Attach notary certificate of acknowledgment)
3387578v1 / 18621.0001
CAL!FORfr{[A ACK[tlO\it[-EDGISEt{T ctvtL coDE g 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
On
personally appeared
"lr0
before me,
a)+ro-.r - R D)ENCTL,
Here /nserf /Vorne ond Title of the Officer
UJ it I ra ^^sU ' No^.f{"t Signer* --
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I ceftify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature c
Ploce Notary Seol qnd/or Stomp Above of Notory Public
OPTIONA[.
Completing this informotion con deter olterotion of the document or froudulent reattochment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Paoes:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed hy Signer(s)
Signer's Name: Signer's Name:
tr Corporate Officer - Title(s): tr Corporate Officer - Title(s):
tr Partner- tr Limited tr General
tr lndividual tr Attorney in Fact
tr Trustee n Guardian or Conservator
tr Other:
tr Partner- n Limited tr General
n lndividual tr Attorney in Fact
tr Trustee n Guardian or Conservator
n Other:
Signer is Representing: Signer is Representing
I
O2019 National Notary Association
Conln. r.r 21, 2017
HYASHAAXDETSOII
Notrry Publlc. Ctlltornl.
Frrrm County
Cotnlnlrilon r 24alllz
EXHIBIT "A''
Legal Description
To Deed of Trust
Thal part of Lot 16 ol Fresno Colony, in the City ol Fresno, County of Fresno, State of California, according to the map recorilbii in Book 2 Page 8 of plats, Fresno County Records, described as lollows: Commencing at a point on the West line ol Lot 16 of Fresno Colony, 241.36 feet northerly frorn the Southwest corner of said Lot 18; thence northerly along the West line ol said Lot 16 a distance of 1055.4 leet, a little more or less, to the Northwest corner of said Lot 16; thence easterly along thee Norlh line of said Lot 16, a distance of 327.22|eet, a litile more or less, to a point which is 297.2leel westerly from the Northeast corner of sald Lol 16; thenca soulherly along a line which passes through a point on the South line of said Lot 16, 299.35 feet westerly from the Southeast corner of said Lot 16, a distance of 1055.5 feet, a little more or less, to a point which is 241.36 feet northerly, at right angles, lrom the South llne of sald Lot 16; thence weslerly, a dlstance of 328.0 leet, a little more or less, to the point of cornmenc€ment.
APN:477-060-04
Thefollowing isa copyof provisions(1)to (14), inclusive, of thefictitiousdeed of trust, recorded in each county in California, as stated in the foregoing Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein To Protect the Security of This Deed of Trust, Trustor (Borrower) Agrees:
(1) To keep said property in good condition and repair, not to remove or demolish any building thereon, to complete or restore promptly and in good and workmanlike manner any . building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor, to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon, not to commit or permit waste thereof, not to commit, suffer or permit any act upon said property in violations of law to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not excluding the general. (2) To provide maintain and deliver to the Beneficiary fire insurance satisfactory to and with loss payable to the Beneficiary. The amount collected under any fire or other insurance policy may be applied by the Beneficiary upon indebtedness secured hereby and in such order as the Beneficiary may determine, or at option of the Beneficiary the entire amount so collected or any part thereof may be released to the Borrower. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and to pay all costs and expenses including cost of evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which the Beneficiary or the Trustee may appear, and in any suit brought by the Beneficiary to foreclose this Deed of Trust.
(4) To pay at least 10 days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant water stock, when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto, all costs, fees and expenses of this Trust.
Should the Borrower fail to make any payment or to do any act as herein provided, then the Beneficiary or the Trustee, but without obligation to do so and without notice to or demand upon the Borrower and without releasing the Borrower from any obligation hereof, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof the Beneficiary or the Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee, pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto, and in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees.
(5) To pay immediately and without demand all sums so expended by the Beneficiary or the Trustee, with interest from date of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded.
(6) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and shall be paid to the Beneficiary who may apply or release such moneys received by him in the same manner and with the same effect as above provided for disposition of proceeds of fire or other insurance.
(7) That by accepting payment of any sum secured hereby after its due date, the Beneficiary does not waive his rights either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. (8) That at any time or from time to time, without liability therefor and without notice, upon written request of the Beneficiary and presentation of this Deed and said Note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, the Trustee may reconvey any part of said property, consent to the making of any map or plot thereof; join in granting any easement thereon; or join in any extension agreement or any agreement subordinating the lien or charge hereof. (9) That upon written request of the Beneficiary state that all sums secured hereby have been paid, and upon surrender of this Deed and said Note to the Trustee for cancellation and retention and upon payment of its fees, the Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "The person or persons legally entitled thereto." Five years after issuance of such full reconveyance, the Trustee may destroy said note and this Deed (unless directed in such request to retain them).
(10) That as additional security, the Borrower hereby gives to and confers upon the Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto the Borrower the right, prior to any default by the Borrower in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect the rents, issues and profits of said property, reserving unto the Borrower the right, prior to any default by the Borrower in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, the Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his own name sue for or othenryise collect such rents, issues and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees. Upon any indebtedness secured hereby, and in such order as the Beneficiary may determine. The entering upon and taking possession of said property, the collection of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. (11) That upon default by the Borrower in payment of any indebtedness secured hereby or in performance of any agreement hereunder. The Beneficiary may declare all sums secured hereby immediately due and payable by delivery to the Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold said property which notice the Trustee shall cause to be filed for record. The Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, the Trustee, without demand on the Borrower, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in laMul money of the United States, payable at time of sale. The Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters orfacts shall be conclusive proof of the truthfulness thereof. Any person, including the Borrower, Trustee, or the Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of the Trustee and of this Trust, including cost of evidence of title in connection with sale, the Trustee shall apply the proceeds of sale to payment of all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof, all other sums then secured hereby, and the remainder, if any, to the person or persons legally entitled thereto.
(12) The Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Borrower, Trustee and the Beneficiary hereunder, the book and page where this Deed is recorded and the name and address of the new Trustee. (13) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby whether or not named as the Beneficiary herein in this Deed, whenever the context so requires ,the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. (14) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law. The Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which the Borrower, Beneficiary or Trustee shall be a party unless brought by Trustee.
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
To be used only when note has been paid:
To Title Company, Trustee: Dated
The undersigned is the legal owner and holder of all indebtedness secured by the within Deed of Trust. All sums secured by said Deed of Trust have been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel all evidences of indebtedness, secured by said Deed of Trust, delivered to you herewith together with said Deed of Trust, and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, the estate now held by you under the same.
MAIL RECONVEYANCE TO:
By
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation before reconveyance will be made.
EXHIBIT "G
EXEMPLAR HOMEBUYER WRITTEN AGREEMENT
PLHA Loan Program
Homebuyer Agreement for Mortgage Assistance
NOTICE TO HOMEBUYER: This Agreement contains requirements you must fulfill in exchange for the state assistance you are receiving through the Permanent Local Housing Allocation program (PLHA Program). You should read each paragraph carefully and ask questions regarding any sections you do not fully understand. This Agreement will be enforced through a mortgage loan as set forth in Section 1 below.
You should be sure that you thoroughly understand these documents before you sign them.
This Agreement is entered into this 2024 by and between an individual (herein referred to as HOMEBUYER) and the City of Fresno, a municipalcorporation (herein referred to as CITY), to provide low-income homebuyer mortgage assistance through funding made available to the CITY from the California Department of Housing and Community Development (HCD), PLHA Program. The PLHA Program assistance enables HOMEBUYER to purchase the residence located at l?i,i"'['31:5",'ffi i::i:[ffifi #J[#"?H-":UYER's
Section 1: of Prooram
The CITY will loan the HOMEBUYER the sum of (Loan),
which was provided to the CITY through the PLHA Program as a developer subsidy, thus providing for the construction of the house and after transfer of the completed house to the HOMEBUYER by that same amount, and therefore representing a direct subsidy to the HOMEBUYER. The Loan will be protected by a mortgage recorded on the property. The Promissory Note and Deed of Trust will be released once the period of affordability, as described in Section 2 below, has expired. At that time, if the HOMEBUYER has complied with the terms of this Agreement, no further sums will be due to the City.
Section 2: Affordabilitv Period
The period of affordability for the house will be 30 years, based on the amount of the direct subsidy to the HOMEBUYER. During this 3O-year period of affordability, the HOMEBUYER must always maintain the house as his/her principal place of residence. The HOMEBUYER should be aware the 3O-year period of affordability shall begin at the recordation of the Commencement of Affordability, which a conformed copy shall be provided to the HOMEBUYER. At the end of the 3O-year period of affordability, the City's Declaration of Restriction will be released.
Section 3. Loan and lnterest Rate
The CITY will provide state PLHA Program funds in the form of a 3O-year mortgage at Oo/o interest to the HOMEBUYER in the sum of ($ooo.oo).
The PLHA mortgage assistance in the form of a Promissory Note will be secured by a Deed of Trust recorded against the property. The HOMEBUYER understands and agrees that the Promissory Note secured by a Deed of Trust is made for the sole purpose of assisting the HOMEBUYER in the purchase of the HOMEBUYER's house as the principal place of residence.
Therefore, the HOMEBUYER understands and agrees that the Promissory Note secured by this Deed of Trust shall be immediately due and payable upon the earlier of: (1) any change in residency of the HOMEBUYER from the HOMEBUYER's house which is used as security for the Note described above, unless having obtained the written consent of the CITY; or (2) the sale or transfer, without the CITY's prior written consent, of all or any part of the property, or any interest in the property. A "sale or transfer" means the conveyance of the property or any right, title or interest therein; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the property, or by any other method of conveyance of land interest.
The CITY and the HOMEBUYER acknowledge and agree that this security instrument is second and subordinate in all respects to the liens, terms, covenants and conditions of the first Deed of Trust and shall not impair the rights of any institutional lender which is the maker of a loan secured by such first deed of trust, or such lender's assignee or successor in interest, to exercise its remedies under the deed of trust in the event of default by the HOMEBUYER.
These remedies include the right to foreclosure or exercise a power of sale or to accept a deed or assignment in lieu of foreclosure. The terms and provisions of the first Deed of Trust are paramount and controlling, and they supersede any other terms and provisions hereof in conflict therewith. In the event of a foreclosure or deed in lieu of foreclosure of the first Deed of Trust, any provisions herein or any provisions in any other collateral agreement restricting the use of the property to low-income households or otherwise restricting the HOMEBUYER's ability to sell the property shall have no further force or effect on subsequent owners or purchasers of the property. Any person, including his/her successors or assigns (other than the HOMEBUYER or a related entity of the HOMEBUYER), receiving title to the property through a foreclosure or deed in lieu of foreclosure of the first Deed of Trust shall receive title to the property free and clear from such restrictions.
In the event of a catastrophic occurrence that results in the property having to be sold, the portion of the existing second mortgage lien that results in the combined loan-to-value ratio being more than 100% of the value of the property will be released with no forgiveness of that portion of the debt, and the contemporaneous execution of an unsecured promissory note equal to the amount released from the second mortgage, and a modification agreement that reduces the secured debt of the existing second mortgage by the amount of the new unsecured promissory note.
Section 4. Use of PLHA Funds
The Loan provided to the HOMEBUYER was initially provided to the Developer as a construction loan forthe construction of the house located at Fresno, California. Developer's construction loan subsequently converted to a mortgage assistance loan at the transfer of the property title through escrow to the HOMEBUYER, thus representing a direct mortgage subsidy assistance to the HOMEBUYER.
Section 5. Princioa I Residence Reouirement
This Agreement shall remain in force throughout the 3O-year period of affordability so long as the house remains the principal residence of the HOMEBUYER. The house shall remain the HOMEBUYER's principal place of residence for the entire 3O-year period of affordability as evidence by the fully executed and recorded Declaration of Restrictions which contains the affordability covenants which shall run with the land and be recorded against the property.
Should the HOMBUYER not maintain the house as his/her principal place of residence, or rent or sell the residence to another party, the HOMEBUYER will be in default of this Agreement and will be required to repay any amount of the PLHA loan outstanding as of the date the house is no longer the principal place of residence of the HOMEBUYER.
Section 6. Recapture Aqreement
The CITY requires that PLHA funds be recaptured if the house does not continue to be the HOMEBUYER's principal residence or if all or any part of the property or any interest in it is sold, rented, conveyed, or transferred for the duration of the 30-year period of affordability. lf the net proceeds are not sufficient to recapture the full PLHA loan amount plus enable the HOMEBUYER to recover the amount of the HOMEBUYER's down payment and any capital improvement investment made by the HOMEBUYER since purchase, the CITY may share the net proceeds. The net proceeds are the sales price minus superior loan repayment (other than PLHA funds) and any closing costs.
ln the event of foreclosure, the amount subject to recapture is based on the amount of net proceeds (if any) from the foreclosure sale. The net proceeds may be divided proportionally as set forth in the following mathematical formulas:
PLHA loan investment x Net
proceeds
= PLHA recaptured
PLHA loan + homeowner
investment
Homeowner investment = amount to homeownerx Net
proceeds
PLHA loan
homeowner investment
+
Section 7. Low-l me Homebuver
The HOMEBUYER attests, and the CITY has verified, that the HOMEBUYER qualifies as a low-income individual or household as defined in the PLHA Program regulations and has a total income that does not exceed 80% of the Area Median lncome for Fresno County as defined by the California Department of Housing and Community Development (HCD).
Section 8. Appraised Value of Housinq Determined to be Modest The CITY certifies that the property appraiser has appraised the value of the house located at Fresno, California, that is subject to this PLHA Agreement is [$ FILL lN DOLLAR AMOUNTI. The CITY has verified that the purchase price of the house does not exceed 95% of the median purchase price of the area, as set forth in 24 CFR Part e2.254(a)(2Xiii).
Section 9. lnsura Reouirement
The HOMEBUYER must at all times during the duration of the Agreement maintain a valid and current insurance policy on the house for the current appraised or assessed value of the house.
Failure to maintain a valid and current insurance policy will be considered a breach of this Agreement, and the CITY will have the right to foreclose on its mortgage lien if necessary to protect the PLHA loan program.
Sectio n10 Standards
Pursuant to the PLHA Program rules, the property located at Fresno, California must meet all State and local housing quality standard and CITY code requirements lf no such standards or codes apply, the property must at a minimum meet the HUD Section 8 Housing Qua I ity Standard s/U niform Physical Cond itions Standards.
HOMEBUYER(S)
an individual Date
(Attach notary certificate of acknowledgment)
CIry OF FRESNO,
A California municipal corporation
By:
Name: Georgeanne A. White,
Title: City Manager
(Attach notary certificate of acknowledgment)
APPROVED AS TO FORM
ANDREW JANZ
City Attorney
By:
Name: Tracy N. Parvanian
Title: Supervising Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Name:
Title: Deputy City Clerk